25 November 2021
LIMITED COMPANY HAS NOT FILED AOC-4 FOR THE YEAR ENDED 2015. HOWEVER HAS BEEN FILLING IN LATER YEARS. ROC HAS INITIATED CRIMINAL PROCEDINGS IN COURT IN YEAR 2017. SUMMONS HAS BEEN RECIVED BY DIRECTOR NOW IN 2021 ( DIRECTOR WAS NOT ON BOARD IN AUGUST 2015 AS HE HAD RESIGNED IN JULY BY FILLING DIR 11 WHICH WAS APPROVED BY MCA). WHAT IS RECOURSE TO DIRECTOR TO ABSOLVE HIMSELF FROM THIS FALSE CASE. WHAT IS THE RIGHT COURSE OF ACTION TO FOLOW AT COURT END AND ROC END. I HEAR THE SETION 137 IS DECRIMINALIZED AND PENALTY IS REDUCED. PLEASE GUIDE AS REGARDS MY LIABILTY (AS I WAS NOT ON BOARD DURING NON COMPLIANCE IN OCT 2015.
09 July 2024
In the scenario you've described, where a director who resigned in July 2015 received summons in 2021 regarding non-filing of AOC-4 for the year ended 2015, there are several points to consider:
1. **Director's Resignation and Liability**: According to the information provided, you resigned as a director in July 2015 and your resignation was duly filed with the Ministry of Corporate Affairs (MCA) via DIR-11. This means you formally ceased to be a director before the period when the non-compliance occurred (August 2015, when the AOC-4 was due for filing). Typically, as per corporate law, directors are liable for compliance during their tenure, and resignation is a valid way to limit future liability for actions or inactions of the company.
2. **Legal Proceedings and Defense**: Since you have received summons in 2021, despite resigning in 2015, it's crucial to respond appropriately. Here’s what you can consider: - **Legal Counsel**: Engage a qualified legal counsel who specializes in corporate law and compliance to represent you. - **Documentary Evidence**: Provide copies of the DIR-11 filing and any other documents that prove your resignation and cessation of directorship. - **Defense**: Based on your resignation and the timing of the alleged non-compliance, your defense would likely focus on demonstrating that you were not a director at the time of the non-compliance, thus not liable for the offense.
3. **Changes in Company Law (Decriminalization)**: Section 137 of the Companies Act, 2013, which deals with non-filing of financial statements, has been decriminalized to a large extent. Penalties are now primarily monetary in nature rather than criminal. This means that while penalties may still apply for non-compliance, they are less severe compared to earlier provisions.
4. **ROC Proceedings**: Ensure that your legal counsel represents you in any proceedings initiated by the Registrar of Companies (ROC). Provide all necessary documents to support your defense.
5. **Compliance Going Forward**: Even though the offense occurred before your resignation, ensure that all necessary steps are taken to comply with any ongoing compliance requirements related to the summons or legal proceedings.
In summary, your main defense is that you resigned from directorship before the period of non-compliance, as evidenced by the DIR-11 filing. This should absolve you from liability regarding the non-filing of AOC-4 for the year ended 2015. It's essential to rely on legal advice and provide all necessary documentation to support your case during any legal proceedings.
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