Short title

and com-

mencement.

LOK SABHA

————

The following Bill was introduced in Lok Sabha on 12th December, 2014:—

BILL NO. 185 OF 2014

A Bill to amend the Companies Act, 2013.

BE it enacted by Parliament in the Sixty-fifth Year of the Republic of India as follows:—

1. (1) This Act may be called the Companies (Amendment) Act, 2014.

(2) It shall come into force on such date as the Central Government may, by notification

in the Official Gazette, appoint and different dates may be appointed for different provisions

of this Act and any reference in any provision to the commencement of this Act shall be

construed as a reference to the coming into force of that provision.

2. In section 2 of the Companies Act, 2013 (hereinafter referred to as the principal

Act),—

(i) in clause (68), the words “of one lakh rupees or such higher paid-up share

capital” shall be omitted;

(ii) in clause (71), in sub-clause (b), the words “of five lakh rupees or such

higher paid-up capital,” shall be omitted.

3. In section 9 of the principal Act, the words “and a common seal” shall be

omitted.

4. In section 11 of the principal Act, in sub-section (1), in clause (a), the words “and

the paid-up share capital of the company is not less than five lakh rupees in case of a public

company and not less than one lakh rupees in case of a private company” shall be omitted.

18 of 2013.

Amendment

of section 2.

Amendment

of section 9.

Amendment

of section 11.

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EXTRAORDINARY

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PART II — Section 2

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PUBLISHED BY AUTHORITY

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No. 39] NEW DELHI, FRIDAY, DECEMBER 12, 2014/AGRAHAYANA 21, 1936 (SAKA)

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Separate paging is given to this Part in order that it may be filed as a separate compilation.

2

THE GAZETTE OF INDIA EXTRAORDINARY

[PART II—

5. In section 12 of the principal Act, in sub-section (3), for clause (b), the following

clause shall be substituted, namely:—

“(b) have its name engraved in legible characters on its seal, if any;”.

6. In section 22 of the principal Act,—

(i) in sub-section (2),—

(a) for the words “under its common seal”, the words “under its common

seal, if any,” shall be substituted;

(b) the following proviso shall be inserted, namely:—

“Provided that in case a company does not have a common seal,

the authorisation under this sub-section shall be made by two directors

or by a director and the Company Secretary, wherever the company has

appointed a Company Secretary.”;

(ii) in sub-section (3), the words ‘‘and have the effect as if it were made under

its common seal” shall be omitted.

7. In section 46 of the principal Act, in sub-section (1), for the words “issued under

the common seal of the company”, the words “issued under the common seal, if any, of the

company or signed by two directors or by a director and the Company Secretary, wherever

the company has appointed a Company Secretary” shall be substituted.

8. After section 76 of the principal Act, the following section shall be inserted,

namely:—

“76A. Where a company accepts or invites or allows or causes any other

person to accept or invite on its behalf any deposit in contravention of the manner or

the conditions prescribed under section 73 or section 76 or rules made thereunder or

if a company fails to repay the deposit or part thereof or any interest due thereon

within the time specified under section 73 or section 76 or rules made thereunder or

such further time as may be allowed by the Tribunal under section 73,—

(a) the company shall, in addition to the payment of the amount of deposit

or part thereof and the interest due, be punishable with fine which shall not be

less than one crore rupees but which may extend to ten crore rupees; and

(b) every officer of the company who is in default shall be punishable with

imprisonment which may extend to seven years or with fine which shall not be

less than twenty-five lakh rupees but which may extend to two crore rupees, or

with both:

Provided that if it is proved that the officer of the company who is in default,

has contravened such provisions knowingly or wilfully with the intention to deceive

the company or its shareholders or depositors or creditors or tax authorities, he shall

be liable for action under section 447.”.

9. In section 117 of the principal Act, in sub-section (3),—

(i) in clause (g), the word ‘‘and’’ occuring at the end shall be omitted;

(ii) after clause (g), the following proviso shall be inserted, namely:—

“Provided that no person shall be entitled under section 399 to inspect or

obtain copies of such resolutions; and”.

10. In section 123 of the principal Act, in sub-section (1), after the third proviso, the

following proviso shall be inserted, namely:—

“Provided also that no company shall declare dividend unless carried over

previous losses and depreciation not provided in previous year or years are set off

against profit of the company for the current year.”.

Amendment

of section 12.

Amendment

of section 22.

Amendment

of section 46.

Insertion of

new section

76A.

Punishment

for contra-

vention of

section 73 or

section 76.

Amendment

of section

117.

Amendment

of section

123.

SEC. 2]

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3

11. In section 124 of the principal Act, in sub-section (6),—

(i) for the words, brackets and figure “unpaid or unclaimed dividend has been

transferred under sub-section (5) shall also be”, the words “dividend has not been

paid or claimed for seven consecutive years or more shall be” shall be substituted;

(ii) after the proviso, the following Explanation shall be inserted, namely:—

“Explanation.—For the removal of doubts, it is hereby clarified that in case

any dividend is paid or claimed for any year during the said period of seven

consecutive years, the share shall not be transferred to Investor Education and

Protection Fund.’’.

12. In section 134 of the principal Act, in sub-section (3), after clause (c), the following

clause shall be inserted, namely:—

“(ca) details in respect of frauds reported by auditors under sub-section (12) of

section 143 other than those which are reportable to the Central Government;”.

13. In section 143 of the principal Act, for sub-section (12), the following sub-section

shall be substituted, namely:—

“(12) Notwithstanding anything contained in this section, if an auditor of a

company in the course of the performance of his duties as auditor, has reason to

believe that an offence of fraud involving such amount or amounts as may be

prescribed, is being or has been committed in the company by its officers or employees,

the auditor shall report the matter to the Central Government within such time and in

such manner as may be prescribed:

Provided that in case of a fraud involving lesser than the specified amount, the

auditor shall report the matter to the audit committee constituted under section 177 or

to the Board in other cases within such time and in such manner as may be

prescribed:

Provided further that the companies, whose auditors have reported frauds

under this sub-section to the audit committee or the Board but not reported to the

Central Government, shall disclose the details about such frauds in the Board's report

in such manner as may be prescribed.”.

14. In section 177 of the principal Act, in sub-section (4), in clause (iv), the following

proviso shall be inserted, namely:—

"Provided that the Audit Committee may make omnibus approval for related

party transactions proposed to be entered into by the company subject to such

conditions as may be prescribed;".

15. In section 185 of the principal Act, in sub-section (1), in the proviso, after clause

(b), the following clauses and proviso shall be inserted, namely:—

"(c) any loan made by a holding company to its wholly owned subsidiary

company or any guarantee given or security provided by a holding company in

respect of any loan made to its wholly owned subsidiary company; or

(d) any guarantee given or security provided by a holding company in respect

of loan made by any bank or financial institution to its subsidiary company:

Provided that the loans made under clauses (c) and (d) are utilised by the

subsidiary company for its principal business activities.".

16. In section 188 of the principal Act,

(a) in sub-section (1),—

(i) for the words "special resolution", at both the places where they occur, the

word "resolution" shall be substituted;

Amendment

of section

124.

Amendment

of section

134.

Amendment

of section

143.

Amendment

of section

177.

Amendment

of section

185.

Amendment

of section

188.

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THE GAZETTE OF INDIA EXTRAORDINARY

[PART II—

(ii) after the third proviso, the following proviso shall be inserted, namely:—

"Provided also that the requirement of passing the resolution under first

proviso shall not be applicable for transactions entered into between a holding

company and its wholly owned subsidiary whose accounts are consolidated

with such holding company and placed before the shareholders at the general

meeting for approval.";

(b) in sub-section (3), for the words "special resolution", the word "resolution"

shall be substituted.

17. In section 212 of the principal Act, in sub-section (6), for the words, brackets and

figures "the offences covered under sub-sections (5) and (6) of section 7, section 34, section

36, sub-section (1) of section 38, sub-section (5) of section 46, sub-section (7) of section 56,

sub-section (10) of section 66, sub-section (5) of section 140, sub-section (4) of section 206,

section 213, section 229, sub-section (1) of section 251, sub-section (3) of section 339 and

section 448 which attract the punishment for fraud provided in section 447", the words and

figures "offence covered under section 447" shall be substituted.

18. In section 223 of the principal Act, in sub-section (4), in clause (a), for the words

"by the seal", the words "by the seal, if any," shall be substituted.

19. In section 419 of the principal Act, in sub-section (4), the words "or winding up"

shall be omitted.

20. In section 435 of the principal Act, in sub-section (1),—

(i) for the words "trial of offences under this Act", the words "trial of offences

punishable under this Act with imprisonment of two years or more" shall be

substituted;

(ii) the following proviso shall be inserted, namely:—

"Provided that all other offences shall be tried, as the case may be, by a

Metropolitan Magistrate or a Judicial Magistrate of the First Class having

jurisdiction to try any offence under this Act or under any previous company

law.".

21. In section 436 of the principal Act, in sub-section (1), in clause (a), for the words

"all offences under this Act", the words, brackets and figures "all offences specified under

sub-section (1) of section 435" shall be substituted.

Amendment

of section

212.

Amendment

of section

223.

Amendment

of section

419.

Amendment

of section

435.

Amendment

of section

436.

SEC. 2]

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5

STATEMENT OF OBJECTS AND REASONS

Companies Act, 2013 (Act) was notified on 29th August, 2013. Barring provisons

relating to Chapters XV to XX and certain other provisions relating to setting up of/exercise

of powers by National Company Law Tribunal (NCLT)/National Company Law Appellate

Tribunal (NCLAT); Investor Education and Protection Fund (IEPF'); National Financial

Reporting Authority (NFRA) and Special Court, all provisions of the Act have been brought

into force with effect from 1st April, 2014.

After the commencement of provisions of the Act, Government have received

representations from various stakeholders (including Industry Chambers, Professional

Institutes, Legal Experts and Ministries/Departments) expressing practical difficulties in

complying with some of the requirements laid down in the commenced provisions. It was

noted that some of the issues raised and suggestions made can be addressed only by way

of amendent in the Act and their immediate resolution is also considered to be necessary.

Some of the amendments are also required with a view to further facilitate 'ease of doing

business' and deal with certain difficulties in this behalf brought out by Industry Chambers

and other agencies.

The proposed amendments deal with related party transactions, fraud reporting by

auditors, public inspection of Board resolutions, responsibilities of audit committee,

restrictions on bail, making common seal optional, requirement for minimum paid-up share

capital, strength of benches for hearing winding up cases, jurisdiction of special courts to try

offences.

Amendments are also being proposed in the Act to incorporate some of the provisions

earlier left out inadvertently, setting off of past losses/depreciation before declaring dividend

and exemptions for giving of loans/guarantee/security by holding companies to its

subsidiaries.

Accordingly, it has been decided to move amendments in the Act through an

Amendment Bill. The Bill, namely, the Companies (Amendment) Bill, 2014, inter alia,

contains the amendments to the Companies Act, 2013 as under:—

(i) to amend clauses (68), (71) of section 2 and section 11 of the said Act to omit

the requirement for minimum paid-up share capital, and consequential changes;

(ii) to amend sections 9, 12, 22, 46 and 223 of the said Act for making common

seal optional, and consequential changes for authorisation for execution of documents;

(iii) to insert a new section 76A to provide for punishment for deposits accepted

in violation of the provisions of the said Act;

(iv) to amend clause (g) of sub-section (3) of section 117 to prohibit public

inspection of Board resolutions filed in the Registry;

(v) to amend sub-section (1) of section 123 of the said Act to include provisions

for writing off past losses/depreciation before declaring dividend for the year;

(vi) to amend sub-section (6) of section 124 of the said Act for rectifying the

requirement of transferring equity shares for which unclaimed/unpaid dividend has

been transferred to the Investors Education and Protection Fund even though

subsequent dividend(s) has been claimed;

(vii) to amend sub-section (3) of section 134 and sub-section (12) of section 143

of the said Act to incorporate enabling provisions to prescribe thresholds beyond

which fraud shall be reported to the Central Government (below the threshold, it will be

reported to the Audit Committee). Disclosures for the latter category also to be made in

the Board's Report;

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THE GAZETTE OF INDIA EXTRAORDINARY

[PART II—

(viii) to amend clause (iv) of sub-section (4) of section 177 of the said Act to

provide provision empowering Audit Committee to give omnibus approvals for related

party transactions on annual basis;

(ix) to amend section 185 of the said Act to provide for exemption u/s 185 (Loans

to Directors) provided for loans to wholly owned subsidiaries and guarantees/securities

on loans taken from banks by subsidiaries;

(x) to amend sub-section (1) of section 188 of the said Act for replacing 'special

resolution' with 'resolution' for approval of related party transactions by non-related

shareholders;

(xi) to amend sub-section (1) of section 188 of the said Act to exempt related

party transactions between holding companies and wholly owned subsidiaries (WOS)

from the requirement of approval of non-related shareholders';

(xii) to amend sub-section (6) of section 212 of the said Act to provide for bail

restrictions to apply only for offence relating to fraud u/s 447;

(xiii) to amend sub-section (4) of section 419 of the said Act to provide for

winding up cases to be heard by 2-member Bench instead of a 3-member Bench; and

(xiv) to amend sections 435 and 436 of the said Act to provide for that Special

Courts to try only offences carrying imprisonment of two years or more.

The Bill seeks to achieve the above objectives.

NEW DELHI;

ARUN JAITLEY.

The 8th December, 2014.

SEC. 2]

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7

MEMORANDUM REGARDING DELEGATED LEGISLATION

Clause 13 of the Bill, inter alia, proposes to substitute sub-section (12) of section 143

of the Companies Act, 2013 so as to confer power upon the Central Government to specify

amount of fraud, beyond which the matter shall be reportable by the auditor to the Central

Government and also in other cases the matter shall be reportable to the Audit Committee or

to the Board. This clause also empowers the Central Government to specify the manner of

reporting to the Central Government or the Audit Committee or Board as the case may be.

Further, this clause also empowers the Central Government to specify the manner in which

the details about such frauds are to be disclosed in the Board's report.

Clause 14 of the Bill, inter alia, proposes to insert a proviso in clause (vi) of sub-

section (4) of section 177 of the Companies Act, 2013 so as to confer power upon the Central

Government to specify such conditions with which the Audit Committee may make omnibus

approval for related party transactions.

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THE GAZETTE OF INDIA EXTRAORDINARY

[PART II—

ANNEXURE

EXTRACTS FROM THE COMPANIES ACT, 2013

(18 OF 2013)

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2. In this Act, unless the context otherwise requires,—

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(68) "private company" means a company having a minimum paid-up share capital of

one lakh rupees or such higher paid-up share capital as may be prescribed, and which by its

articles,—

(i) restricts the right to transfer its shares;

(ii) except in case of One Person Company, limits the number of its members to

two hundred:

Provided that where two or more persons hold one or more shares in a company jointly,

they shall, for the purposes of this clause, be treated as a single member:

Provided further that—

(A) persons who are in the employment of the company; and

(B) persons who, having been formerly in the employment of the company, were

members of the company while in that employment and have continued to be members

after the employment ceased,

shall not be included in the number of members; and

(iii) prohibits any invitation to the public to subscribe for any securities of the

company;

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(71) "public company" means a company which—

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(b) has a minimum paid-up share capital of five lakh rupees or such higher paid-

up capital, as may be prescribed:

Provided that a company which is a subsidiary of a company, not being a private

company, shall be deemed to be public company for the purposes of this Act even where

such subsidiary company continues to be a private company in its articles;

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9. From the date of incorporation mentioned in the certificate of incorporation, such

subscribers to the memorandum and all other persons, as may, from time to time, become

members of the company, shall be a body corporate by the name contained in the memoran-

dum, capable of exercising all the functions of an incorporated company under this Act and

having perpetual succession and a common seal with power to acquire, hold and dispose of

property, both movable and immovable, tangible and intangible, to contract and to sue and

be sued, by the said name.

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11. (1) A company having a share capital shall not commence any business or exercise

any borrowing powers unless—

Definitions.

Effect of

registration.

Commencement

of business, etc.

SEC. 2]

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9

(a) a declaration is filed by a director in such form and verified in such manner as

may be prescribed, with the Registrar that every subscriber to the memorandum has

paid the value of the shares agreed to be taken by him and the paid-up share capital of

the company is not less than five lakh rupees in case of a public company and not less

than one lakh rupees in case of a private company on the date of making of this

declaration; and

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12. (1)

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(3) Every company shall—

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(b) have its name engraved in legible characters on its seal;

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22. (1)

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(2) A company may, by writing under its common seal, authorise any person, either

generally or in respect of any specified matters, as its attorney to execute other deeds on its

behalf in any place either in or outside india.

(3) A deed signed by such an attorney on behalf of the company and under his seal

shall bind the company and have the effect as if it were made under its common seal.

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46. (1) A certificate, issued under the common seal of the company, specifying the

shares held by any person, shall be prima facie evidence of the title of the person to such

shares.

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117. (1)

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(3) The provisions of this section shall apply to—

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(g) resolutions passed in pursuance of sub-section (3) of section 179; and

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CHAPTER VIII

DECLARATION AND PAYMENT OF DIVIDEND

123. (1) No dividend shall be declared or paid by a company for any financial year

except—

(a) out of the profits of the company for that year arrived at after providing for

depreciation in accordance with the provisions of sub-section (2), or out of the profits

of the company for any previous financial year or years arrived at after providing for

depreciation in accordance with the provisions of that sub-section and remaining

undistributed, or out of both; or

(b) out of money provided by the Central Government or a State Government for

the payment of dividend by the company in pursuance of a guarantee given by that

Government:

Provided that a company may, before the declaration of any dividend in any financial

year, transfer such percentage of its profits for that financial year as it may consider

appropriate to the reserves of the company:

Registered

office of

company.

Execution of

bills of

exchange, etc.

Certificate of

shares.

Resolutions

and agree-

ments to be

filed.

Declaration of

dividend.

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[PART II—

Provided further that where, owing to inadequacy or absence of profits in any financial

year, any company proposes to declare dividend out of the accumulated profits earned by it

in previous years and transferred by the company to the reserves, such declaration of

dividend shall not be made except in accordance with such rules as may be prescribed in this

behalf:

Provided also that no dividend shall be declared or paid by a company from its

reserves other than free reserves.

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124. (1)

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(6) All shares in respect of which unpaid or unclaimed dividend has been transferred

under sub-section (5) shall also be transferred by the company in the name of Investor

Education and Protection Fund along with a Statement containing such details as may be

prescribed:

Provided that any claimant of shares transferred above shall be entitled to claim the

transfer of shares from Investor Education and Protection Fund in accordance with such

procedure and on submission of such documents as may be prescribed.

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134. (1)

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(3) There shall be attached to statements laid before a company in general meeting, a

report by its Board of Directors, which shall include—

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143. (1)

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(12) Notwithstanding anything contained in this section, if an auditor of a company, in

the course of the performance of his duties as auditor, has reason to believe that an offence

involving fraud is being or has been committed against the company by officers or

employees of the company, he shall immediately report the matter to the Central Government

within such time and in such manner as may be prescribed.

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177. (1)

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(4) Every Audit Committee shall act in accordance with the terms of reference specified

in writing by the Board which shall, inter alia, include,—

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(iv) approval or any subsequent modification of transactions of the company

with related parties;

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185. (1) Save as otherwise provided in this Act, no company shall, directly or indirectly,

advance any loan, including any loan represented by a book debt, to any of its directors or

to any other person in whom the director is interested or give any guarantee or provide any

security in connection with any loan taken by him or such other person:

Provided that nothing contained in this sub-section shall apply to—

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188. (1) Except with the consent of the Board of Directors given by a resolution at a

meeting of the Board and subject to such conditions as may be prescribed, no company shall

enter into any contract or arrangement with a related party with respect to—

Financial

statement,

Board's

report, etc.

Unpaid

dividend

account.

Powers and

duties of

auditors and

auditing

standards.

Audit

Committee.

Related party

transactions.

Loan to

directors, etc.

SEC. 2]

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11

(a) sale, purchase or suply of any goods or materials;

(b) selling or otherwise disposing of, or buying, property of any kind;

(c) leasing of property of any kind;

(d) availing or rendering of any services;

(e) appointment of any agent for purchase or sale of goods, materials, services

or property;

(f) such related party's appointment to any office or place of profit in the

company, its subsidiary company or associate company; and

(g) underwriting the subscription of any securities or derivatives thereof, of the

company:

Provided that no contract or arrangement, in the case of a company having a paid-up

share capital of not less than such amount, or transactions not exceeding such sums, as may

be prescribed, shall be entered into except with the prior approval of the company by a

special resolution:

Provided further that no member of the company shall vote on such special resolution,

to approve any contract or arrangement which may be entered into by the company, if such

member is a related party:

Provided also that nothing in this sub-section shall apply to any transactions entered

into by the company in its ordinary course of business other than transactions which are not

on an arm's length basis.

Explanation.—In this sub-section,—

(a) the expression "office or place of profit" means any office or place—

(i) where such office or place is held by a director, if the director holding it

receives from the company anything by way of remuneration over and above

the remuneration to which he is entitled as director, by way of salary, fee,

commission, perquisites, any rent-free accommodation, or otherwise;

(ii) where such office or place is held by an individual other than a director

or by any firm, private company or other body corporate, if the individual, firm,

private company or body corporate holding it receives from the company

anything by way of remuneration, salary, fee, commission, perquisites, any

rent-free accommodation, or otherwise;

(b) the expression "arm's length transaction" means a transaction between two

related parties that is conducted as if they were unrelated, so that there is no conflict

of interest.

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(3) where any contract or arrangement is entered into by a director or any other

employee, without obtaining the consent of the Board or approval by a special resolution in

the general meeting under sub-section (1) and if it is not ratified by the Board or, as the case

may be, by the shareholders at a meeting within three months from the date on which such

contract or arrangement was entered into, such contract or arrangement shall be voidable at

the option of the Board and if the contract or arrangement is with a related party to any

director, or is authorised by any other director, the directors concerned shall indemnify the

company against any loss incurred by it.

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212. (1)

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(6) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the

offences covered under sub-sections (5) and (6) of section 7, section 34, section 36,

sub-section (1) of section 38, sub-section (5) of section 46, sub-section (7) of section 56,

sub-section (10) of section 66, sub-section (5) of section 140, sub-section (4) of section 206,

Investigation

into affairs of

Company by

Serious Fraud

Investigation

Office.

2 of 1974.

section 213, section 229, sub-section (1) of section 251, sub-section (3) of section 339 and

section 448 which attract the punishment for fraud provided in section 447 of this Act shall

be cognizable and no person accused of any offence under those sections shall be released

on bail or on his own bond unless—

(i) the Public Prosecutor has been given an opportunity to oppose the application

for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied

that there are resonable grounds for believing that he is not guilty of such offence and

that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years or is a woman or is sick

or infirm, may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence referred

to in this sub-section except upon a complaint in writing made by—

(i) the Director, Serious Fraud Investigation Office; or

(ii) any officer of the Central Government authorised, by a general or special

order in writing in this behalf by that Government.

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223. (1)

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(4) The report of any inspector appointed under this Chapter shall be authenticated

either—

(a) by the seal of the company whose affairs have been investigated; or

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419. (1)

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*

(4) The President shall, for the disposal of any case relating to rehabilitation,

restructuring, reviving or winding up, of companies, constitute one or more Special Benches

consisting of three or more Members, majority necessarily being of Judicial Members.

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CHAPTER XXVIII

SPECIAL COURTS

435. (1) The Central Government may, for the purpose of providing speedy trial of

offences under this Act, by notification, establish or designate as many Special Courts as

may be necessary.

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436. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,—

(a) all offences under this Act shall be triable only by the Special Court established

for the area in which the registered office of the company in relation to which the

offence is committed or where there are more Special Courts than one for such area, by

such one of them as may be specified in this behalf by the High Court concerned:

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Inspector's

report.

Benches of

Tribunal.

Establishment

of Special

Courts.

Offences

triable by

Special

Courts.

2 of 1974.

12

THE GAZETTE OF INDIA EXTRAORDINARY

[PART II—SEC. 2]

ANOOP MISHRA,

Secretary-General.

GMGIPMRND—3641GI(S3)—22-12-2014.

PRINTED BY THE GENERAL MANAGER, GOVERNMENT OF INDIA PRESS, MINTO ROAD, NEW DELHI

AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHI—2014.