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Highlights of the Companies Amendment Act, 2019

The Ministry of Corporate Affairs has amended the Companies Act 2013 vide the Companies (Amendment) Act, 2019 (the “Amendment Act”) notified on 31 July 2019. The Amendment Act takes into account the amendments that were already notified in the Companies (Amendment) Ordinance, 2018, which came into force on 2 November, 2018.

The major changes under the Amendment Act are broadly aimed at:

  • to improve the existing prosecution system by imposition of stricter penalties, under various sections, on the companies as well as the officers in default. Although this will increase the monetary burden on the company but will gradually help to reduce non-compliances.
  • to re-categorize certain compoundable offences as civil defaults and remove the criminal liability attached to them. The amendment has re-categorized certain penal provisions, where defaults that were punishable with fine/ and imprisonment have been amended to penalty. Now, the offences can be easily adjudicated with the authorities without going into time-consuming application procedures.
  • to transfer some of the approval powers from NCLT to the Central government i.e. ROC to reduce the burden of tribunals.
  • to bring accountability to the CSR activities undertaken by the Companies not only in letter but in spirit too.
  • greater accountability with respect to filing documents related to creation, modification and satisfaction of charges; non-maintenance of registered office to trigger de-registration process; holding of directorships beyond permissible limits to trigger disqualification of such directors, have also been introduced in the Amendment Act. Reforms pertaining to declaration of commencement of business provision.

Key Highlights of the Amendment Act:

Sr. No.

Category Highlights on the amendments
1.

 

Approval for Change in Financial Year

Any company or body corporate which is a holding company or a subsidiary or an associate company of a company incorporated outside India and is required to follow a different financial year for consolidation of its accounts outside India, may change its financial year with the approval of Central Government.

Prior to amendment, Tribunal’s approval was required.

2. Requirement of obtaining approval for Commencement of Business

Companies incorporated after Amendment Act, shall commence its business or exercise any borrowing powers only after filing a declaration with respect to the receipt of paid up value of the shares from the subscribers to the memorandum and the verification of Registered office within 30 days from the date of incorporation in with the Registrar of Companies. The declaration shall be filed within 180 days from the date of Incorporation.

3. Physical verification of Registered Office of the Company

Pursuant to amendment in Section 12, the Registrar is empowered to do the physical verification of the Registered office of a Company if it has reasonable cause to believe that the company is not carrying on any business or operations also to remove the name of the Company from the register of companies.

4. Approval for conversion of Public Company to Private Limited Company

Erstwhile, the Tribunal had authority approve or reject any alteration in the Articles of the Company relating to conversion of a public company into a private company. Pursuant to this amendment, the Central Government is empowered.

5. Securities to be in Dematerialized Form

A new provision has been inserted to Section 29, whereby securities of certain class or classes of unlisted companies, the securities shall be held or transferred only in dematerialized form in the manner laid down in the Depositories Act, 1996 and the regulations made thereunder.

6. Registration of Charge (due date for filing is reduced)

Section 77 has been amended whereby the extended period of 270 days has been now restricted to 60 days for filing an application to register a charge.

7. Responsibility of Identifying beneficial owner

Sub-section 4A has been inserted whereby every company shall take necessary steps to identify an individual who is a significant beneficial owner in relation to the company and require him to comply with the provisions of section 90. The introduction of this section brings more clarity for casting duty on company to identify and report on Significant Beneficial Owner to the Registrar. Further, Central Government has been empowered to make rules for the section.

8. Consequence of non-filing of Annual Return

Penalty provisions on non-filing of the annual return within the prescribed timeline have been revised and a further penalty of INR 100 per day on continuing offence subject to a maximum of 5 Lakhs has been imposed.

9. Section 117 (Resolutions and Agreements to be Filed)

The word ‘fine’ has been substituted with the word ‘penalty’ in the penalty provision and an additional penalty on continuing offence of INR 500 per day subject to maximum of INR 5 Lakhs have been imposed.

10. Section 135 (Corporate Social Responsibility)

Clarification has been provided for calculation of profits in case of newly incorporated Company by inserting following words under sub-section 5 “or where the company has not completed the period of three financial years since its incorporation, during such immediately preceding financial years”. On the unspent amount, a provision has been added to transfer the unspent amount to a fund specified under schedule VII within six months from the expiry of financial year has been provided unless it relates to an ongoing project.

In relation to any amount being unspent which relates to an ongoing project shall be transferred to a separate account to be opened by the Company to be called as the Unspent Corporate Social Responsibility Account within a period of 30 days from the end of Financial Year and such amount shall be spent within the period of three financial years from the date of transfer and in case of failure such amount shall be transferred to a fund specified in Schedule VII within 30 days from the date of completion of third financial year.

In case of default, the company shall be punishable with fine which shall not be less than fifty thousand rupees but which may extend to twenty-five lakh rupees and every officer of such company who is in default, shall be punishable with imprisonment for a term which may extend to three years or with fine which shall not be less than fifty thousand rupees but which may extend to five lakh rupees, or with both.”

11. Automatic Vacation in case of Disqualification of Director

A new clause (i) has been inserted under Section 164 as “he has not complied with the provisions of sub-section (1) of section 165” which is one of the grounds of disqualification of a director where, if he/ she breaches the limits of maximum directorship allowed thereunder.

It is to be noted that falling under any of the clauses of Section 164 leads to automatic vacation of office from all the existing companies.

12. Stock options to Independent Director

Provisions pertaining to the prohibition on entitlement of stock option by independent directors. However, this omission shall not have any impact as Section 149 (9) also provides similar prohibition.

Further, the minimum fine of 1 lakh rupees and maximum fine of 5 lakhs rupees have been replaced with a penalty of INR 1 lakh for the defaulting person and in addition where any default has been made by a company, the company shall be liable to a penalty of five lakh rupees.

13. Oppression & Mismanagement

There is an insertion of 3 new sub-sections to the Section, where for the purpose of class of companies as may be prescribed the matter shall only be made before principal bench of the Tribunal and if in the opinion of Central government there exists circumstances as mentioned under sub section 3 clause (a) (b) (c) and (d), the Central Government may initiate a case against such person and refer the same to the Tribunal with a request that the Tribunal may inquire into the case and record a decision as to whether or not such person is a fit and proper person to hold the office of a director or any other office connected with the conduct and management of the company.

14. Powers of Tribunal in case of Oppression & Mismanagement

A new sub-section (4A) has been inserted to cast responsibility on the tribunal to record its decision at the conclusion of hearing case in respect of sub-section (3) of section 241, specifically as to whether or not the respondent is a fit and proper person to hold the office of director or any other office connected with the conduct and management of any company.

15. Section 243 (Consequence of termination or modification of certain agreements)

New Sub-sections (1A) and (1B) to the section has been inserted whereby in case a person is declared as not a fit or proper person pursuant to section 242(4A) under the case of oppression and mis-management, shall not hold the office of a director or any other office connected with the conduct and management of the affairs of any company for a period of five years from the date of the said decision provided that the Central Government may, with the leave of the Tribunal, permit such person to hold any such office before the expiry of the said period of five years.

Further, according to Section 243(1B), any person on being removed as Director or any other office connected with the conduct and management of affairs of the company, shall not be entitled to, or be paid, any compensation for the loss or termination of office.

16. Petition for winding up by Registrar

There is an amendment in sub-section (3) which enables the Registrar to present a petition for winding up under section 271 with the only exception mentioned in clause of Section 271 which talks about the situation where if the company has, by special resolution, resolved that the company be wound up by the Tribunal the Registrar may not present such petition.

17. Compounding of offences

The amendment has increased the limit of offence for compounding before the Regional Director from 5 Lakh rupees to 25 Lakh rupees in 441(1)(b). Further, it has been clarified in sub-section (6), that any offence which is punishable under this Act with imprisonment only or with imprisonment and also with fine shall not be compoundable.

18. Penalty for repeated default

New Section 454A has been inserted which talks about the penalty of repeated default. In this section a company or an officer of a company or any other person shall be liable to the twice the amount of penalty, who had already been subjected to the penalty under the Act. However, the subsequent default has to be repeated within 3 years from the date of order imposing penalty for earlier default.

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Jurisprudence of Corporate Criminal Liability of Directors

Gone are the times when the world viewed Indian Companies as ‘family businesses’. With time, the structures adopted in Indian companies have grown increasingly specialized and complex, with specific directors being nominated to take charge of specified activities of the Company. As we will see, the provisions for making the direction and management of a company liable are mostly deeming provisions. However, there can be an opinion amongst stakeholders while dividing duties amongst the board members that in case criminal liability arises against the company then the director nominated for overlooking that aspect of its business shall also be held criminally liable. The legal approach, though, is a little more complex than that.

This article is a disambiguation in this regard, and through the following paragraphs an understanding of the theoretical framework, the legislative intent and the judicial interpretations in developing the standards to impose criminal liability on directors will be discussed. As companies have grown with time, so have statutory provisions and the understanding with respect to corporate actions which amount to criminal offences, and who is deemed liable for it.

Laying the Theoretical Framework: Corporate Criminal Liability

The recognition of the company as a separate legal entity is the basic cornerstone of laws relating to corporate liability around the world. However, courts struggled in attempting to fasten liability over companies for acts which were considered criminal offences. The courts had historically struggled on two main fronts in this regard (1) to assign mens rea, i.e. a criminal intent factor to fictional entities such as companies, and (2) to punish corporates where statutory punishments were mostly corporal in nature, i.e. requiring punishment via imprisonment.

On the face of this need, emerged the doctrine of corporate criminal liability, which basically enables the courts to single out individuals responsible for criminal acts committed in the name of companies. For offences which did not require the proof of mens rea, the simple answer that courts came up with was to introduce a modified version of the Doctrine of Vicarious Liability through which the controlling persons of the company would be made liable[i]. But soon company directors were also brought to answer for the criminal acts for which criminal intent was also necessary to be proven[ii]. This was called the theory of ‘Identification’ or ‘Attribution’, a modified form of vicarious liability, where for the purpose of the criminal act, the person in control of the affairs of the company (that is to say its directors and managers) and the company were considered one and the same.

Earlier, the courts in India only recognized that companies can act through their managers and directors, but the law as it stands now however, consolidates the position that companies are as culpable as any living person and can be prosecuted and punished for the same, this is governed by two major decisions in this regard. First is the case of Standard Chartered Bank v. Directorate of Enforcement[iii] wherein the constitution bench of the Supreme Court held that a company can be prosecuted and convicted for an offence requiring minimum imprisonment. And secondly, in Iridium India Telecom Ltd. v. Motorola Inc[iv], wherein the issue was whether a company could be held liable under Section 420 of the Indian Penal Code, 1860, the Apex Court answered in the affirmative and clarified further, that even if the offence would require the proof of mens rea, a company can be made liable to the act as the guilty mind of the person in control of the company’s affairs is ‘attributed’ to the company as well.

Director’s Liability under India’s Legislative Framework

The Companies Act, 1956 employed the concept of “officer who is in default”, to impose the liability for defaults by a company over officers responsible for its management. However, penalties under the Companies Act, 1956 were seen as largely ineffective against cases of serious internal frauds committed by the promoters and senior management of companies. But, with the enactment of the Companies Act, 2013 ( the “Act”), came also the statutory recognition of the duties of a director, such as exercise of due and reasonable care, skill, diligence, and independent judgement.  Earlier, by virtue of their positions, only the MD, whole-time directors, and company secretaries used to fall within the scope of “officer who is in default”, but the Act has significantly expanded this scope to include any person who would, in the given scenario, have had superintendence/ control/ direction/ management over the affairs of the company. Under the Act, independent directors can also be made answerable for lapses in performing their duties. The Act also includes the elements of knowledge and intent in determining who is an officer who is in default. Moreover, section 447 of the Act, which deals with fraud, makes persons liable who act or abuse their position with intent to deceive, to gain undue advantage, or to injure the legitimate interests of others (company/ shareholders/ creditor/ persons) whether or not there is wrongful gain or loss. Nevertheless, it is necessary to prove intent and knowledge in most cases.

Apart from the Companies Act, 2013, offences by companies are also stipulated under various other legislations. These provisions extend the liability for contravening the provisions under the relevant statute to companies, and the persons in charge of and responsible for the conduct of the business of the company. Further, these provisions typically provide for a non-obstante clause which stipulates that if it is proved that the director, manager, secretary or other officer of the company connived, consented to the offence or can be attributed to the negligence, then such director, manager, secretary or other officer shall also be deemed guilty and proceeded and punished accordingly.

Some of the legislations that contain the above-mentioned provision would be as follows:-

  • the Air (Prevention and Control of Pollution) Act, 1981;
  • the Water (Prevention & Control of Pollution) Act, 1974;
  • the Prevention of Money Laundering Act, 2002;
  • the Securities Contracts (Regulation) Act, 1956;
  • the Securities Exchange Board of India Act, 1992;
  • the Competition Act, 2002; and
  • the Income Tax Act, 1961.

The question that arises basis the above discussion, then, is whether any person simply designated as an officer in default by the Company, can be held criminally liable.

In Sunil Bharti Mittal v. Central Bureau of Intelligence[v] the Supreme Court gave recognition to the theory of attribution/ identification in determining whether a director or person in charge of the company can be prosecuted for an offence by the company. The court stated that the person upon whom the acts of the company must be attributed must be the ‘alter-ego’ of the company, that is the degree of identity between the acts of the company and the ‘directing mind and will’ of the responsible persons must be high enough for the courts to infer them as one and the same. Moreover, just because a person is at the helm of the affairs, that would not make him/her liable for crimes requiring intent. In this case, the Supreme Court held that the special court was right to not accept charge sheet against the managing director just because he was the head of the company.

The discerning criteria thus is whether the proof of intent is required to prove an offence. An officer who is in default for contraventions which do not require proof of intent, may, thus, be prosecuted by virtue of his/her position, but the same is simply not tenable in offences where proof of intent is required.

An example of a statute which allows the nomination of person-in-charge for the obligations under a legislation is under section 66 of the Food Safety and Standards Act, 2006,. The provision in this enactment state that a director or manager can be nominated to be responsible for any contraventions of the provisions of the respective enactments.

It is to be noted, that only when the legislation permits the nomination of the responsible director, and such nomination is made before the commission of the offence, only then a director specifically nominated for offences under an act can be prosecuted, even if there is no direct intent[vi].

Hence,

The thumb rule is thus that unless it is specifically provided in a statute, a director may be made criminally liable only if there is existing proof of intent against the director. The directors must ensure that they diligently avoid the commission of such offences in the name of the Company, the onus shall nevertheless remain upon them to prove that the offence was committed without their knowledge or consent[vii].

The laws are changing in their focus from structural to functional aspects of the companies in determining criminal liability, for example, the 2018 amendment to the Prevention of Corruption Act, 1988 brings forth a stricter provision for liability of any director/manager/other officer who “acted in consent or connivance” with the commercial organization (which includes a company) in the commission of an offense under the legislation. The position of the officer in the company would thus be less important to fasten the liability, and whether the company had standards/code of conducts in place to demand the level of diligence and care from its officers in preventing the offence from being committed will also be a factor under the Prevention of Corruption Act, 1988.

It is now more important than ever that companies must actively develop standards of accountability from each level of key people responsible within the organisation and adopt procedures which prevent such conduct in the first place.

[i] Queen v. Great North of England Railways Co., [1846] 9 QB 315; State v. Morris & Essex Rail Co., 23 N.J.L. 360 (1852); Commonwealth v. Proprietors of New Bedford Bridge, 68 Mass (2 Gray) 339 (1854)

[ii] New York Central and Hudson River Rail Road Co. v. United States, 212 US 431 (1909); Moussell Brothers Ltd. v. London & North West Railway Co Ltd, [1917] 2 KB 836; Lennard’s Carrying Co Ltd v. Asiatic Petroleum Co Ltd, [1915] AC 705

[iii] AIR 2005 SC 2622

[iv] (2011) 1 SCC 74

[v] AIR 2015 SC 923

[vi] R. Banerjee v. H.D. Dubey, MANU/SC/0731/1992

[vii] Ministry of Agriculture v. Mayhco Monsanto Biotech (India) Limited, (2016) 137 SCL 373 [CCI]

Author: Avaneesh Satyang