Supreme Court in Registrar of Companies vs. Rajashree Sugar and Chemicals Ltd. 2000 AIR SCW 1833 had to decide above question in respect offences (except those under s.545) of Companies Act. This was appeal against the decision of High Court of Madras dt.17th March 1998. The facts of the case were as follows. The company was sent share certificates along with transfer in two batches.

(1) on 23rd November 1990 & (2) on 18th December 1990. These were received by company on 11th December 90 & 26th December 90 respectively. These were approved on 29.3.91 & despatched on 6th April 1991 while 2nd batch of application were approved by Co on 3rd April 99 & dispatched on 16th April 91. Under sec.113(1) the companies ought to have approved & despatch within 60 days from the receipt of valid transfer. The Co had not complied with above provision of law.

The Registrar of Companies came to know about the lapse by company on 20th July 92 when Registrar had inspected the books of account of the company under sec.209-A(1) of Companies Act. A complaint was filed by the Registrar of Companies, who is appellant, in the present case, on 20th August 1992 before the Chief Judicial Magistrate Coimbatore. Chief Judicial Magistrate by his order dated 30th March 1993 dismissed the complaint on the ground that it was barred by limitation under sec.468 of Criminal Procedure Code.

The appeal was filed under s.397 & 401 of Cr.P.C. before the High Court, Madras. The High Court upheld the order of Judicial Magistrate and also held that the appellant was incompetent to file complaint in respect of an offence under sec.113 of Companies Act, as the appellant was neither the person aggrieved nor a police officer and that the prosecution under sec.113 of Companies Act could be launched by an affected shareholder.

Supreme Court closely examined the relevant provisions of Companies Act namely sec.113 & also sec.468 & 469of Criminal procedure code. Supreme Court opined that the appellant came to know of offence on 20th July 1992. The commencement of period of limitation of six months for initiating prosecution will have to be calculated from 20th July 92. Since the complaint was filed on 20th August 1992 it was well within the period specified under sec.468(2) of the Code.

It was contended on behalf of respondents that the Registrar of Companies was not aggrieved person under the relevant provisions of Criminal procedure Code & relied on Gujarat High Court decision in Vasantlal Chandulal Mazumdar vs. Navinchandra Manelal (1981) 22 Guj.LR 43 & decision of Single Judge of Delhi High Court in Nestle India Ltd. vs. State (1994) 4 comp LJ 446(Del) & Madras High Court decision in Sulochana v. State Registrar of Chets (Investigation & Prosecution) Madras 1978 Cri.LJ 116.

Supreme Court noted that contrary view has been expressed by two Division Bench Judgements of Calcutta High Court in Bhagvati Prasad vs. Asst. Registrar of Cos. (1983) 53 Comp. Case 56 & Sushil Kumar vs. Registrar of Cos.(1983) 53 Comp Cas 54 with reference to sec 113 of Cos. Act.

Supreme Court noted that decision of Madras High Court in Sulochana's case (supra) has been expressly overruled by Division Bench of Madras High Court in Abdul Rahim vs. State represented by the Chit Registrar Nagapattinam 1978 Mad LW (Cri) 195. It was held in above case that Registrar of Chits was a "person aggrieved" within the meaning of sec.469(1)(b) of Criminal Procedure Code & was competent to initiate prosecution for an offence under Tamilnadu Chit Funds Act 1961. Supreme Court noted that Sulochana's case was also distinguished in two Calcutta High Court decisions.

Supreme Court observed that in Nestle India Ltd. (1994)(4) comp LJ 446, the learned judge as also High Court in its judgement under appeal considered the provisions of sec 621(1) of Cos. Act. After examining the provisions of sec 621(1) of Cos. Act, Supreme Court opined the appellant is competent to file a written complaint in respect of offences inter alia, under sec 113 of Companies Act.

Supreme Court noted the phrase "person aggrieved" has not been defined in the code. However as far as offences under Cos' Act are concerned the words must be understood and construed in the context of sec 621 of the Act under sec 621 of the Act no court can take cognizance of an offence under Cos. Act against Companies except on the complaint of a shareholder, the Registrar or the person duly authorised by the Central Govt. Where the transferee or allottee is not an existing shareholder of the company, if the word "person aggrieved" is read in such a limited manner it would mean that s.469(1)(b) of the Code would be entirely in applicable to offences under sec.113 of the Act.

There is, in any event no justification to interpret the words ` person aggrieved as used in sec.469(1)(b) of the Code restrictions particularly when as in this case, the statute creating the offence (except those under sec.545) against the Companies Act.

Supreme Court opined that sec 113(3) of Cos. Act deals with the civil liability of the company & its officers of sec 113(1) of the instance of transferee of the shares. Sec 113(2) deals with the criminal liability arising out of a violation of sec 113(1) is primarily compensatory in nature whereas sec 113(2) is punitive.

An application under sec 113(6) can only be made by the transferee. A transferee who is not an existing shareholder of the company cannot file a complaint under sec.113(2) at all.Supreme Court held that the decision of High Court as well as the Chief Judicial Magisrate, Coimbatore asre set aside. The Apex court remanded the matter back to the Chief Judicial Magistrate, Coimbnatore for being decided on merits.