Compounding of offences - Section 441 of companies act 2013

CS Shubham Katyal , Last updated: 13 December 2017
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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.

Section 441: The provisions pertaining to compounding of offences under Companies Act, 2013 ("the Act") are set forth under Section 441 of Act. 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.

Permission of Special Court: Section- 441(6) of Companies Act, 2013: Any offence which is punishable under this Act, with imprisonment or fine, or with imprisonment or fine or with both, shall be compoundable with the permission of the Special Court, in accordance with the procedure laid down in that Act for compounding of offence.

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 compounding of offences under the Act, 2013:

As per Section 403 read with Rule 12 of Companies (Registration Offices and Fees) Rules, 2014, the compounding application has to be made to ROC by filing e-Form GNL-1.

The following figure explains the process:

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
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 sub-section (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

Conclusion

As evident from the table above, majority of the offence under Act, 2013 can be compounded by the Regional Director and few extreme cases by the NCLT. Some of the offences can be compounded by any of the concerned authorities as some of it involves the case of additional or further fine where there is no possibility of assumption on the maximum amount of fine as it depends on the period of default of the defaulter.

DISCLAIMER: This write up is based on the understanding and interpretation of author and the same is not intended to be a professional advice.

The author can also be reached at shubhamkatyal37@gmail.com