342. Prosecution of delinquent officers and members of company
(1) If it appears to the Tribunal in the course of a winding up by the Tribunal, that
any person, who is or has been an officer, or any member, of the company has been guilty of
any offence in relation to the company, the Tribunal may, either on the application of any
person interested in the winding up or suo motu, direct the liquidator to prosecute the
offender or to refer the matter to the Registrar.
(2) If it appears to the Company Liquidator in the course of a voluntary winding up that
any person,who is or has been an officer, or any member, of the company has been guilty of
any offence in relation to the company under this Act, he shall forthwith report the matter to
the Registrar and shall furnish to him such information and give to him such access to and
facilities for inspecting and taking copies of any books and papers, being information or
books and papers in the possession or under the control of the Company Liquidator and
relating to the matter in question, as the Registrar may require.
(3) Where any report is made under sub-section (2) to the Registrar,—
(a) if he thinks fit, he may apply to the Central Government for an order to make
further inquiry into the affairs of the company by any person designated by him and
for conferring on such person all the powers of investigation as are provided under
this Act;
(b) if he considers that the case is one in which a prosecution ought to be
instituted, he shall report the matter to the Central Government, and that Government
may, after taking such legal advice as it thinks fit, direct the Registrar to institute
prosecution:
Provided that no report shall be made by the Registrar under this clause without first
giving the accused person a reasonable opportunity of making a statement in writing to the
Registrar and of being heard thereon.
(4) If it appears to the Tribunal in the course of a voluntary winding up that any
person, who is or has been an officer, or any member, of the company has been guilty as
aforesaid, and that no report with respect to the matter has been made by the Company
Liquidator to the Registrar under sub-section (2), the Tribunal may, on the application of any
person interested in the winding up or suo motu, direct the Company Liquidator to make
such a report, and on a report being made, the provisions of this section shall have effect as
though the report had been made in pursuance of the provisions of sub-section (2).
(5) When any prosecution is instituted under this section, it shall be the duty of the
liquidator and of every person, who is or has been an officer and agent of the company to
give all assistance in connection with the prosecution which he is reasonably able to give.
Explanation.—For the purposes of this sub-section, the expression “agent”, in relation
to a company, shall include any banker or legal adviser of the company and any person
employed by the company as auditor.
(6) If a person fails or neglects to give assistance required by sub-section (5), he shall
be liable to pay fine which shall not be less than twenty-five thousand rupees but which may
extend to one lakh rupees.