Intellectual Property Rights: Practice and Drafting by Adv Gautam Matani. Register Now!
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Anil Agrawal (Retired)     30 October 2008


Out of 4 directors, the name of only one director and company was included in the complaint before before the magistrate in cheque bouncing case. When this director died, the complainant wanted the name of yet another director included as an accused. The magistrate held that he is not an accused and his name cannot be included. After passing of this order, magistrate was transferred. Complaint moved another application after 3 years for inclusion of his name again. The present magistrate accepted the application even after considering the previous order. In other words, the other two directors remain untouched. Does the magistrate have inherent power to revise his order after 3 years and pass such an order?


 5 Replies

N.K.Assumi (Advocate)     31 October 2008

If the company is the principal Offender  the demise of one of the director named in the complaint is immaterial as it will bind other directors. Remember the old slogan " the queen is death long live the queen" the same applies to company.

prof s c pratihar (medical practitioner &legal studies)     31 October 2008

you received a classical answer and the basics.even in civil cases such similarity is seen.example---writ art 226 AIIMS REPRESENTED BY any director comes things remains the same .but if you mention dr x director aiims as the respondant and in case he leaves the job  you will have to do amendement of petition to include the name of new director..just written for discussion sake.

Anil Agrawal (Retired)     01 November 2008

 Pl read this and advise whether a NBFC which is not registered with RBI can do business of lending finance and will monies so advanced treated as legally enforceable debt if cheque bounces.


By Act 23 of 1997 which came into effect on 9-1-1997, Section 45IA was added to the RBI Act, 1934, which made it mandatory that no non-banking financial company shall commence or carry on the business of a non-banking financial institution without–

(a)           obtaining a certificate of registration; and

(b)          having the net owned fund of twenty-five lakh rupees or such other amount, not exceeding two hundred lakh rupees, as the Bank may, by notification in the Official Gazette, specify. Penalty and punishment for contravention of this provision has been written in

The said company has not complied with any of the two provisions of law.

Section 58B(4A) of the RBI Act, 1934, reads as follows:

If any person contravenes the provisions of sub-section (1) of section 45-IA, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to five years and with fine which shall not be less than one lakh rupees but which may extend to five lakh rupees.


6)          In addition, a NBFC is under legal obligation to submit to RBI every year the certified true copies of the audited balance sheet and profit and loss account together with a copy of the report of the Board of Directors within 15 days from the date of annual general meeting at which these accounts are passed. Non compliance with these obligations would attract penal provisions contained in section 58B(2) read with section 58G of the RBI Act, 1934, for delay or non-submission of the returns. Failure to file the return within the stipulated date is punishable with fine which may extend to Rs.2000 and if the default persists with further fine which may extend to Rs.100 for every day. The fine is leviable on both the company and its Directors. The company is obliged to file “NIL” returns even if it has not done any business in a particular year.

Anil Agrawal (Retired)     10 December 2008

 My point is whether magistrate has inherent power to revise the order passed by his predecessor in office? The order was passed by the previous magistrate 3 years ago in which he clearly stated that the person is not an accused and his name cannot be included now. The present order says that though it was decided by the magistrate like this, the name can be included. The beauty is that the complainant had made an application that the person should be asked to "represent" the company. The magistate in his wisdom says that he should be included as an accused. There are 4 directors. One died and the name of another is sought to be included now after the complaint was filed 10 years ago. If this man dies, another application will be moved to include the name of another one and so on. How long will it continue? The beauty is that the magistrate has accepted that he is not a director as he had resigned and informed the ROC also. Now he talks of "date of transaction". If the loan was given 15 years ago and directors have come and gone, can all such directors be hauled because the loan was given when they were directors 15 years ago?

Anil Agrawal (Retired)     10 December 2008

 Even when the names of other directors is not mentioned in the original complaint? How long this substituion continue? One dies, another comes. Then he also dies and then another comes. It is not an instituion. But criminal liability of personal nature. 

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