Kusumam N Kutty v. Registrar of Companies, Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** **Crl.Rev.Pet.No. 1423 of 2002 ( )** **--------------------------------AGAINST THE ORDER/JUDGMENT IN CRA.538/2000 of V ADDL.SESSIONS JUDGE, ERNAKULAM DATED 17.07.2002** **AGAINST THE ORDER/JUDGMENT IN ST.55/1997 of ADDL.C.J.M.(E&O),ERNAKULAM DATED 09-11-2000** ## **REVISION PETITIONER(S)/APPELLANT/ACCUSED::** **--------------------------------------------------------------------------** **KUSUMAM N.KUTTY, W/O. NARAYANAN KUTTY, 35/1939, KOCHI-16.** **BY ADVS.SRI.M.R.RAJENDRAN NAIR (SR.)** **SRI.R.SREERAJ SRI.NIDHI BALACHANDRAN SRI.HARIRAJ SRI.ANIL R. NAIR SMT.T.M.RESHMY SMT.VINEETHA B.** ## **RESPONDENTS)/RESPONDENTS/COMPLAINANT::** **--------------------------------------------------------------------------------** **1. THE REGISTRAR OF COMPANIES, KERALA, M.G.ROAD, ERNAKULAM, KOCHI-17.** - **2. M/S. NEO VENUS PHARMA (P) LTD., REGISTERED ADDRESS GIVEN AS 35/1938, RAVIPURAM KOCHI-17, PRESENT ADDRESS NOT KNOWN.** - **(2ND RESPONDENT IS DELETED FROM PARTY ARRAY AS PER** - **ORDER DATED 13.3.2013 IN CRL.M.A.NO.1923/13)** **3. STATE OF KERALA, REPRESENTED BY THE STATE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **R,R1 BY ADV. SRI.P.S.SREEDHARAN PILLAI, SCGSC SRI.P.P. REJI JOSEPH – PUBLIC PROSECUTOR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25-03-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.Rev.Pet.No. 1423 of 2002** ## **C.M.P.NO.8007/2002 IN CRL.R.P.NO.1423/2002** ## **DISMISSED** ## **25.3.2013.** **SD/- P.D. RAJAN,JUDGE.** **TRUE COPY PA TO JUDGE.** _acd_ ## **P.D. RAJAN, J.** ------------------------------------------Crl. R.P.No.1423 of 2002 ---------------------------------------------Dated this the 25[th] day of March, 2013 ## **ORDER** This revision petition is preferred against the order in Criminal Appeal No.538/2000 of the V[th] Additional Sessions Judge, Ernakulam. The above appeal was preferred against the judgment in S.T.No.55/1997 of the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam, which was field by the Registrar of Companies under Section 162 of the Companies Act. 2. The allegation was that the 1[st] accused in the above case is a private Company incorporated as per the provisions of the Companies Act, which was represented by its Managing Director, the 2[nd] accused. The revision petitioner is liable to submit annual returns of the Company after the commencement of Annual General Meeting for the year 1990. Even after sixty days of Annual General Meeting, the return was not submitted to the Registrar of Companies. Hence a notice was issued to the 2 Crl. R.P.No.1423/02 revision petitioner to submit the annual return at the earliest. After receipt of the notice, there was no response from the side of the revision petitioner. In the above circumstances, the above case was filed in the Additional Chief Judicial Magistrate Economic Offences, Ernakulam under Section 162 of the Companies Act. 3. In the trial court, the learned Additional Chief Judicial Magistrate examined PW1 and marked Exts.P1 to P3 documents to prove the case. The accused were convicted and sentenced to pay a fine of Rs.4000/- each, in default the accused No.2 (revision petitioner) shall undergo simple imprisonment for two months u/s.162 of Companies Act. A sum of Rs.1000/- each from out of the fine amount shall be paid as cost to the complainant (1[st] respondent). Aggrieved by that, the 2[nd] accused (revision petitioner) preferred the above appeal in the lower appellate court. When the matter was came up for hearing, the learned Sessions Judge dismissed the appeal on the ground that no steps were taken against the 2[nd] respondent. Aggrieved by that order, the present revision Crl. R.P.No.1423/02 3 petition is field. 4. The learned counsel appearing for the revision petitioner contended that after admitting the case on record, it was dismissed for default without considering the merits of the case. He also contended that the 2[nd] respondent is not a necessary party in the appeal and his presence may be dispensed. Hence, he prays to set aside the order and remit the matter to the lower appellate court for fresh consideration. 5. The learned Public Prosecutor Sri.Reji Joseph also submitted that he has no objection in remitting the matter to the lower appellate court for disposing the matter on merit. 6. On the basis of the aforesaid argument, I have perused the records to consider whether there is any illegality or irregularity in the finding recorded by the trial court. In the appeal memorandum, three persons were impleaded as respondents 1 to 3. Respondents 1 and 3 were served with notice. Address of the 2[nd] respondent was not furnished, in spite of specific direction and in that circumstance, the lower appellate court dismissed the appeal. In such a situation, I find 4 Crl. R.P.No.1423/02 some reason in the argument advanced by the revision petitioner. Once the appeal admitted, it is the primary responsibility of the court to dispose the matter on merits. But, such a consideration was not given in this case. The 2[nd] respondent in Criminal Appeal No.538/2000 is the 1[st] accused in the above S.T., who was convicted by the trial court. Since no appeal is filed, the penalty imposed against the 2[nd] respondent has to be realised by the trial court. Non-issuance of notice to the 2[nd] respondent in the appellate court will not serve any purpose in the above Criminal Appeal. Instead of disposing the matter on merits, the lower appellate court dismissed the appeal. Actually, the 2[nd] respondent, which is the Company, who has to be arrayed as an appellant in the lower appellate court. Instead of impleading the Company as an appellant, included as the 2[nd] respondent in the above appeal. The State is represented by its Public Prosecutor and the Company was also represented. In such a situation, the benevolent principles laid down in _**Jayasankar V.R** ._ v. _**K.G. Dharman and another**_ [2006 KHC 1571], can be relied. It is 5 Crl. R.P.No.1423/02 held that once the appeal is admitted, appellate court cannot dismiss an appeal otherwise than on merits. The courts cannot trace a power for dismissal of an appeal admitted under S.385 Cr PC for default without considering the case on merits. In another decision of this Court in _**Chandran**_ v. _**Excise Inspector**_ [1989 (2) KLT 845] held as follows: “The appellate court while disposing of an appeal, which was not dismissed summarily, has to follow the provisions in Ss.385, 386 & 387. There is no provision in the Code which permits the appellate court to dismiss the appeal without considering it on merits. Even when the court is to dismiss the appeal in a summary manner without issuing notice to other parties and without calling for records, the Code enjoins on the court to consider the contents of the appeal petition, the reasons and the facts set forth in the impugned judgment and to give its own reasons and grounds for such dismissal. The position may be different if the appellant does not press his appeal. But when the appellant and the counsel are absent, the court has to power under the Code to dismiss the appeal without considering it on merits.” In the above decision, this Court relied on two decisions of the Supreme Court in _**Shayam Deo**_ v. _**State of Bihar**_ [AIR 1971 SC 1606] and _**Ram Naresh Yadav**_ v. _**State of Bihar**_ [AIR 1987 SC 1500]. Analyzing the procedure adopted by the court below, it shows that ignoring the legal principles, the appeal was Crl. R.P.No.1423/02 6 dismissed without considering it on merit. In view of the legal principle laid down by this Court, I am of the view that the order passed by the court below is to be set aside. Hence, the criminal revision petition is allowed. The impugned order passed by the lower appellate court is set aside. The learned Sessions Judge is directed to dispose of the appeal afresh in accordance with law. Both parties are directed to appear before the lower appellate court on 10.4.2013. **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.1423/02 7 Crl. R.P.No.1423/02 8