UNDER SECTION 212 OF THE COMPANIES ACT,2013 IT IS ALWAYS OPEN TO APPEAR BEFORE THE INVESTIGATION OFFICER IN COMPLIANCE OF THE SUMMONS ISSUED TO THEM WITHOUT PREJUDICE : MADRAS HIGH COURT
The High Court of Madras passed a judgment on 27 April 2023 stating that under Section 212 of the Companies Act,2013 it is always open to appear before the Investigation officer in compliance of the summons issued to them without prejudice. Section 212 of the Companies Act, 2013 deals with the powers and duties of the Serious Fraud Investigation Office. It was stated in the case of SUBRAMANIAN Vs. UNION OF INDIA (CRL OP.11432/2021) which was passed by the single judge bench comprising of HONOURABLE JUSTICE R.N.MANJULA
FACTS OF THE CASE:
The petitioner was the Managing Director of Subhisksha Trading Services Limited [hereinafter referred to as ‘STSL’], a company under winding up as per the order of this Court dated 29.02.2012, the winding up has become final; the first respondent is the Ministry of Corporate Affairs and the second respondent is the Head of Serious Fraud Investigation Office [hereinafter referred to as ‘SFIO’] has given statutory status under Section 211 of the Companies Act, 2013 [hereinafter referred to as “Act”]; prior to Act 2013, SFIO was functioning as an office under the first respondent with no statutory authority; in respect of SFIO, an order of investigation under Section 235 of the Act 1956 was passed on 17.10.2012 by the first respondent and the same was stayed until the order for winding up of the company has become final; when the proceedings were pending, the company was represented by the Official Liquidator and investigation had taken place and based on the complaint of the prosecution a case is pending on the file of the Special Court against various accused including the petitioner; the proceedings were stayed by this Court in various Criminal Original Petitions filed by the persons set out as accused therein. The petitioner was receiving summons from the third respondent from the year 2018 for a supplementary investigation said to have been ordered on 05.05.2017 and 23.11.2017 under Section 212 of the Act 2013; those summons were served upon the petitioner and he was not in receipt of the orders for supplementary investigation; whenever the summon was served upon the petitioner, he used to seek copies of the orders for supplementary investigation, however he was not furnished with the same; even though the petitioner was sending replies for each of the summons, the summons are being repeatedly sent to him; the supplementary order for investigation has been made without reference to Section 212 (16) of the Act and without jurisdiction; as per the proviso to Section 212 (16) of the Act, there is a complete bar on any order of supplementary investigation there cannot be any order of investigation in respect of a company under winding up.
JUDGEMENT OF THE CASE
The petitioners firmly believe that the action has to be taken only in accordance with Section 210 of the new Act which corresponds to the Section 235 of the old Act and not under Section 212 of the New Act, it is always open to them to appear before the third respondent in compliance of the summons issued to them without prejudice to their above contention. 29. With the above observations, the Criminal Original are disposed. Consequently, connected Miscellaneous Petitions are closed.
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JUDGEMENT REVIEWED BY ROSHNI SABU, KERALA LAW ACADEMY LAW COLLEGE.