Offence:
As per section 3(38) of General Clauses Act, 1897 “Offence” shall mean any act or omission made punishable by any law for the time being in force.
Compounding of offence:
In today’s Corporate world, good governance means to comply with all the provisions of Corporate laws. Non compliance will result in penalties or penalties with imprisonment.
Corporate offences are classified into civil and criminal offences. Further it has been classified as Compoundable and Non compoundable offence.
The Compounding of offences is a short cut method to avoid litigation.
Benefits:
In case of prosecution for an offence in a criminal court, the accused has to appear before the Magistrate at every hearing through an advocate. Further court proceedings are time consuming and expensive. However, in case of compounding, the accused need not appear personally and can be discharged on payment of composition fee which cannot be more than the maximum fine leviable under the relevant provision.
Section 441:
The provisions pertaining to compounding of offences under Companies Act, 2013 (“the Act”) are set forth under Section 441of Act, which is not yet enforced.
The offences, which are punishable with fine, only can be compounded either by Regional Director (hereinafter called “RD”) or by the National Company Law Tribunal (hereinafter called NCLT). In other words, the offences, which are punishable with imprisonment only or imprisonment and fine, cannot be compounded.
Under whose authority shall a petition lie:
- If the fine does not exceed Rs. 5 lakhs, the offence can be
compounded by the RD or any other officer as may be authorized by the Central Government. - If the offence is punishable with fine exceeding Rs 5 lakhs , the same can be compounded by the NCLT.
- Any offence punishable with imprisonment or fine or with imprisonment or fine or with both shall be compoundable with the permission of Special Court;
A detailed “‘Table” indicating the sections, subject matter, amount of fine imposable by the Authority, Tribunal and Special Court before whom the petition shall lie is given separately as per ANNEXURE-I.
Restriction on compounding:
The third proviso to sub-section (1) of Section 441 says that
(a) The offence cannot be compounded either by the Company or its officer in case either the investigation has been initiated or is pending.
(b) The offence cannot be compounded in case similar offence committed by it has been compounded and period of three years has not expired.
(c) any offence which is punishable under this Act with imprisonment only or with imprisonment and also with the fine; cannot be compounded;
What is new in Section 441:
The “‘Third” proviso to Section 441 of Companies Act, 2013 says that in case where either the investigation has been initiated or is pending, the offence cannot be compounded. However, in old Section 621A of Companies Act, 1956, there was no such embargo. In other words, offence could have been compounded notwithstanding the fact that either the investigation has been ordered or is pending against the company.
Explanation:
After the expiry of three years from the date of compounding of offence, if the second or subsequent offence had been committed, the same shall be treated as the first offence.
Procedure for making application:
As per sub-section 3(a) of Section 441, every application of compounding of offence shall be made to the Registrar of Companies, who, in turn, shall forward the same along with his comments to the NCLT or RD or any other officers, as may be authorized by the Central Government for the purpose of adjudication. There is no change under the new provisions.
Post compounding obligation:
Wherein the offence has been compounded, either before or after the institution of any prosecution, an intimation shall be given to the Registrar of Companies within seven days from the date on which, the offence is so compounded. In case the offence has been compounded before the institution of any prosecution, no prosecution shall be filed either by ROC or by any shareholder or by any person authorized by the Central Government. It is needless to point out that the period of seven days shall be reckoned from the date, the order is made available to the petitioner/applicant.
ANNEXURE-I
LIST OF COMPOUNDABLE OFFENCES UNDER THE COMPANIES ACT, 2013.
| Offences compoundable by Regional Director |
Offences compoundable by the NCLT |
|
| 11(2)- Failure complying with the requirements relating to Commencement of business. | 8(11)- default in complying with the requirements relating to formation of companies with charitable objects etc. | |
| 16(3)- Default in complying with the directions issued under sub-section (1) relating to rectification of name of company | 40(5)- Default in complying with the provisions of this section relation to securities to be dealt with in stock exchanges | |
| 26(9)- Contravention of provisions relating to issue of a prospectus | 46(5)- Fraudulently issuing duplicate share certificates by a company | |
| 53(3)- Violation of provisions relating to issue of shares at discount | 66(11)- Default in publishing the order of confirmation of the reduction of share capital by the Tribunal | |
| 56(6)- Failure to comply with the provision relating transfer and transmission of securities under sub- section (1) to (5) | 67(5)- Default in provisions relating to purchase by company or loans by company for purchase of its own shares | |
| 59(5)- Default in complying with the order of Tribunal relating to rectification of register of members | 74(3)- Failure to repay the deposit or part thereof or any interest thereon within the time specified or such further time as may be allowed by the Tribunal | |
| 64(2)- Default in filing a notice related to alteration, increase or redemption of share capital along with the altered memorandum with the Registrar | 117(2)- Failure in filing with the Registrar the copy of notice or agreement within stipulated time | |
| 67(5)- Contravening provisions relating to purchase by company or loans by company for purchase of its own shares | 124(7)- Default in transfer of amount of accumulated profits to unpaid dividend account and violating other provisions of section 124 | |
| 68(11)- Failure in complying with the provisions of this section or any regulation made by the Securities and Exchange Board relating | 143(15)- Failure of auditor to intimate to Central Government regarding fraud against the company by officers or employees | |
| to buy back of securities | ||
| 86- Contravention of any provision relating to Registration of Charges (Chapter VI) | 185(2)- Contravention of the provisions of sub- section 1 relating to loans, guarantee or security |
|
| 88(5)-Failure to maintain register of members/debenture-holders/other security holders as prescribed | 245(7)- Committing default in complying with the order of Tribunal under this section. | |
| 89(5)-Failure to file declaration not holding beneficial interest in any share | 314(8)- Default in complying with the provisions of this Section except sub-section (5). | |
| 89(7)-Failure to file return relating to beneficial interest in any share before the expiry of the time specified UIS 403(1)(i) proviso | 316(2) – Failure to send quarterly report on winding up and call meeting by company liquidator | |
| 92(6)- If a company secretary in practice certifies the annual return otherwise than in conformity with the requirements of this section or the rules made there under | ||
| 99-Default in holding a meeting of the company as u/s 96, I97, I98 or in complying with any directions of the Tribunal | ||
| 102(5)- Default in complying with the provisions of this section relating to statement to be annexed to notice | ||
| 105(3)- If default is made in complying with sub-section (2) relating to proxies | ||
| 105(5)- If invitations to appoint as proxy a person | ||
| or one of a number of persons specified in the invitations are issued | ||
| 121(3)-Failure to file Report on annual General meeting. | ||
| 124(7)- Failure to transfer the amount of accumulated profits to unpaid dividend account and violating other provisions of section 124 | ||
| 137(3)-Failure to file financial statements with the Registrar | ||
| 140(3)-Non-Compliance by auditor of sub-section (2) relating to filing of resignation information | ||
| 147(1)-Failure of company to comply with provisions of sections 139 to 146 with regard to auditors | ||
| 157(2)-Failure to furnish DIN to Registrar | ||
| 165(6)- Acting as a director of more than 20 companies | ||
| 166(7)- Default in complying with the provisions of this section | ||
| relating to directors duties | ||
| 172- Contravention of then provisions of Chapter XI relating to appointment and qualifications of directors | ||
| 178(8)- Default in complying with the provisions of section 177 & of this section relating to Committees like Nomination, Remuneration and Stakeholders Relationship Committee | ||
| 188(5)(ii)- Related party transaction in case of other company | ||
| 186(13)- Contravention of the provisions of this section relating to loans and investment | ||
| 187(4)- Contravention of the provisions of this section relating to investment of company held in its name |
||
| 191(5)- Contravention of the provisions of this section relating to payment to director for loss of office in connection with transfer of property | ||
| 197(15)- Contravention of the provisions of this | ||
| section relating to managerial remuneration in case of absence or inadequacy of profits. | ||
| 203(5)- Contravention of the provisions of this section relating to appointment of Key Managerial personnel |
||
| 204(4)- Contravention of the provisions of this section relating to Secretarial Audit for bigger companies. |
||
| 206(7)- Failure to furnish any information during inspection or inquiry | ||
| 221(2)- Any removal, transfer or disposal of funds, assets, or properties of the company in contravention of the order of the Tribunal under sub-section (1) |
||
| 222(2)- securities in any company are issued/ transferred/acted upon in contravention of an order of the Tribunal under sub- section (1) | ||
| 232(8)- Contravention of the provisions by the transfer and transferee company in case of merger or amalgamation |
||
| 238(3)-Failure to register the offer of Schemes involving transfer of shares. | ||
| 242(8)- Contravention of | ||
| the order of Tribunal relating to alterations in memorandum or articles | ||
| 247(3)(Proviso)- Contravention of the provisions of this section by the valuer | ||
| 249(2)- Filing of application in restricted cases for removal of name | ||
| 302(4)- default by official liquidator in forwarding a copy of the order of dissolution of company by tribunal within the period specified in sub-section (3) | ||
| 306(5)- Default in calling the meeting of the creditors; to prepare a statement of the position of the company’s affairs along with a list of creditors, estimated amount of claim and filing the resolution with Registrar | ||
| 307(2)- Default in publication of resolution to wind up voluntarily | ||
| 312(2)- Failure to give notice of appointment of Company Liquidator to Registrar | ||
| 314(5)-Failure to prepare quarter statement of accounts by company liquidator in voluntary winding up and file with the Registrar under sub-section (5). | ||
| 318(8)- Failure to complying with the provisions of this section relating to final meeting and dissolution of company | ||
| 342(6)- Failure or neglect to give assistance required under subsection (5) | ||
| 344(2)- Failure to give statement that the company is in liquidation | ||
| 348(6)- Contravention of the provisions of information as to pending liquidation | ||
| 356(2)- Failure to file certified copy of the order of Tribunal relating to dissolution of company void with the Registrar | ||
| 392- Contravention of the provisions of Chapter XXII by a foreign company | ||
| 405(4)- Failure to furnish information or statistics etc. by the companies required by the Central Government | ||
| No specific penalty or punishment is provided in the Act | ||
| Repeated default within 3 years | ||
| 452(1)- Punishment for wrongful withholding of property | ||
| 453- Improper use of the words “limited” and “private limited” | ||
| 454(8)- Failure to pay the penalty imposed by the adjudicating officer or Regional Director | ||
| 464(3)- Being a member of a company formed exceeding certain numbers | ||
| 469(3)- Contravention of the Rules framed by Central Government | ||
Disclaimer: The entire contents of this document have been developed on the basis of relevant information and are purely the views of the authors. Though the authors have made utmost efforts to provide authentic information however, the authors and the company expressly disclaim all and any liability to any person who has read this document, or otherwise, in respect of anything, and of consequences of anything done, or omitted to be done by any such person in reliance upon the contents of this document.