THE STATE OF BOMBAY versus BANDHAN RAM BHANDANI AND OTHERS

Citation: [1961] 1 S.C.R. 801 · Decided: 23-09-1960 · Supreme Court of India · Bench: SYED JAFFER IMAM

Judgment (excerpt)

I S.C.R. SUPREME COURT REPORTS 
801 
s. 46(1) of the Income.tax Act and th~ amount of tax 
'960 
and penalty due from him would be "an arrear" E. M. Muthappa 
within s. 46(2). 
Chettiar 
We therefore hold that the proceedings for the 
v. 
recovery of the Excess Profits Tax could properly be The Income-tax 
taken and that the order of the High Court dismissing .officer. s_pccial 
the appellant's petition for the issue of a writ ofCmle, c_oimbatore 
prohibition was correct. 
Ayyanga• J. 
The appeal fails and is dismissed with costs. The 
petition is also dismissed but as these two have been 
heard together there will be no order as to costs in the 
petition. 
Both the Appeal and the Petition dismissed. 
THE STATE OF BOMBAY 
v. 
BANDHAN RAM BHANDANI AND OTHERS. 
(JAFER IMAM, l'.\.. K. SARKAR and 
K. c. DAS GUPTA, JJ.) 
Company-General meeting not called wilfully-Whether it 
can be a defence-Indian Companies Act, I9I3 (VII of r9r3). as 
amended by Companies Act, I9J6 (22 of I9J6), ss. 5, 32(5), IJI and 
I33(3). 
The respondents, directors of a company, were prosecuted 
under ss. 32(5) and 133(3) of the Companies Act, r913, for 
breaches of ss. 32 and 131 of that Act for having knowingly and 
wilfully authorised the failure to file the summary of share capi-
tal for the year 1953 and being knowingly and wilfully parties 
to the failure to lay before the company in general meeting the 
balance sheet and profit and loss account as at March 31, 1953· 
The respondents contended that there was no default in com-
plying with the requirements of the section as no general meet-
ing had been held in the year concerned. 
Held-A person charged with an offence cannot rely on his 
default as an answer to the charge and so, if the respondents 
were responsible for not calling the general meeting, they can-
not be heard to say in defence to the charges brought against 
them that the general meeting had not been called. 
The company and its officers were bound to perform the 
conditions precedent, if they could do that, in order that they 
might perform their duty. 
St/>lember 23. 
Tlit Slate of 
Bombay 
v. 
BaPJdhan Ram 
Bhandani 
& Others 
802 
SUPREME COl.iHT J{El'OHTS 
L1961 J 
It is no less neces.ary to call a mer ting for performing the 
obligations imposed by s. 32 because s . .-76 creates an obligation 
to call a meeting and imposes an ir~Jepciide:nt penalty for breach 
of that obligation. 
Liability under s. 32(5) or s. 133(3) would 
be incurred where the officer has wrongfully assisted in the 
meeting not being held though he might also be liable at the 
same time to the pe:1alty under s. 76. 
Sub-section (5) of s. :i2 b)' imposing a <laily fine during the 
continuance of the default does not in<l1cate that the default is 
not committed till a meeting has been held. 
The default occurs 
after the expiry of twenty-one days from the day when the 
meeting should ha \'e been held. 
lmperator v. The Pio11eer Clay and Ind11stri11l Works Ltd., 
l.L.R. 1948 Born. 86, Q11w1 v. Nndo11, (1879) 48 Law J. Rep. 
M.C. 77 and Dork v., 50111/i Africa11 S1tter-Aerrtion Ltd., I 1904) 20 
T.L.R. 425, d1st1ngu1shed. 
Gibso11 v. Barton, (1875) L.K 10 Q.B. 32<), Edmo11ds '" Foster, 
(1875) 45 Law j. l{ep. :11.C. 41 ancU'urk v. Lmvto11, [1911] 11\.B,. 
588, approved. 
Dorie v. South African S1tper-Aaaiio11 Ltd., (1904) 20 T.L.I« 
425, not applicable. 
CRIMI!IAI, 
APPELLATE 
JURISDIC'l'ION: 
Criminal 
Appeals Nos. 93 & 94/1958. 
Appeals by Hpecial leave from t lw judgmrnt aud 
order dated April 9, 1956, of the furml'r ll<J111bay High 
Court iu Criminal Appeals .Nos. 41!l and 420 of 1956, 
arising out of the judgment and ord"r datecl Oetubcr 
15, l!J55, of the Chief Prnsidency Mu.gist rat«, Bomhay, 
in Cases Nos. 370/S a.nd 371/S of 1955. 
C. K. Daphtary, Solicitor-General of India, N. S. 
Bindra and R. H. Dhebar, for the appellant (iu hoth 
the appeals). 
S. /'. Varma, for respondents i'<us. I, 2 and 3 (In 
hoth tho appeals). 
A. N. Goyal, for respondent No. 4 (In both the 
appeals). 
N. P. Nathwani, S!'N. Andley, J. B. Dadachanji, 
Rameshwar Nath and P. L. Vohra, for respondent~ 
Nos. 5 to 7 (In both the n.ppcals). 
1960. September 2J. The Judgment of the Court 
wae delivered by 
_, 
1 S.C.R. SUPREME COURT JtEPORTS 
803 
SARKAR J.-The respondents were Directors of 
Hirjee Mills Ltd. They were prosecuted before the 
Chief Presidency Magistrate, Bombay, for two offences 
under the Companies Act,, 1913, as amended by Act 
XXII of 1936. The first offence 

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