OBJECTIVE Winding up is the final stage in the business cycle of a Company. It is the process of closing down the legal existence of a company. It can be done either by the Company on its own (voluntary winding up) or by an order passed by the Tribunal (compulsory winding up). The webinar covers the aspects of various provisions relating to liabilities for offences and frauds committed by Officers of the Company and certain aspects of maintenance of books and papers of the Company as enshrined in the Companies Act, 2013.

1. How to Wind Up a Company? – Part-6
CS Meenakshi Jayaraman

2. Credits and Acknowledgments
Sundar Rajan S
2

3. 3
Legends used in the Presentation
Act Companies Act, 2013
CL Company Liquidator
Commencement of Winding Up Time of the presentation of the petition for the winding up
Officer It includes any person in accordance with whose directions or
instructions the directors of the Company have been
accustomed to act
Registrar Registrar of Companies
Sec(s) Section(s)
Tribunal National Company Law Tribunal

4. Presentation Schema
4
Offences by Officers
of Companies in
Liquidation
Penalty for Frauds by
Officers
Liability Where Proper
Accounts not Kept
Liability for
Fraudulent Conduct of
Business
Power of Tribunal to
Assess Damages
Against Delinquent
Directors, etc.
Liability Under
Sections 339 and 340
to Extend to Partners
or Directors in Firms
or Companies
Prosecution of
Delinquent Officers
and Members of
Company
Statement that
Company is in
Liquidation
Books and Papers of
Company to be
Evidence
Inspection of Books
and Papers by
Creditors and
Contributories
Disposal of Books and
Papers of Company
Information as to
Pending Liquidations

5. Offences by Officers of Companies in
Liquidation – Sec 336
5

6.  If any person, who is or has been an officer of a Company which, at the time of the commission of the
alleged offence (as listed below),
 is being wound up, by the Tribunal under this Act or which is subsequently ordered to be
wound up by the Tribunal under this Act
 he shall be punishable with imprisonment for 3 to 5 years and with fine ranging from Rs.
1 lakh to 3 lakhs
a. Not disclosing to the best of his knowledge and belief, fully and truly, to the CL all the property, movable and immovable, of
the Company, and how and to whom and for what consideration and when the Company disposed of any part thereof, except
such part as has been disposed of in the ordinary course of the business of the Company
b. Not delivering up to the CL, or as he directs, all such part of the movable and immovable property of the Company as is in
his custody or under his control and which he is required by law to deliver up
c. Not delivering up to the CL, or as he directs, all such books and papers of the Company as are in his custody or under his
control and which he is required by law to deliver up
d. makes any material omission in any statement relating to the affairs of the Company

7. 7
e. knowing or believing that a false debt has been proved by any person under the winding up, fails for a period of one month to
inform the CL thereof
f. after the commencement of the winding up, prevents the production of any book or paper affecting or relating to the property
or affairs of the Company
g. after the commencement of winding up or at any meeting of the creditors of the Company within the 12 months next before
the commencement of the winding up, attempts to account for any part of the property of the Company by fictitious losses /
expenses
h. guilty of any false representation or fraud for the purpose of obtaining the consent of the creditors of the Company or any of
them, to an agreement with reference to the affairs of the Company or to the winding up

8. 8
i. within the 12 months immediately before the commencement of the winding up or at any time thereafter,
1. conceals any part of the property of the Company to the value of Rs. 1,000 or more, or conceals any debt due to or
from the Company
2. fraudulently removes any part of the property of the Company to the value of Rs. 1,000 or more
3. conceals, destroys, mutilates or falsifies, or is privy to the concealment, destruction, mutilation or falsification of, any
book or paper affecting or relating to, the property or affairs of the Company
4. makes, or is privy to the making of, any false entry in any book or paper affecting or relating to, the property or affairs
of the Company
5. fraudulently parts with, alters or makes any omission in, or is privy to the fraudulent parting with, altering or making of
any omission in, any book or paper affecting or relating to the property or affairs of the Company
6. by any false representation or other fraud, obtains on credit, for or on behalf of the Company, any property which the
Company does not subsequently pay for
7. under the false pretence that the Company is carrying on its business, obtains on credit, for or on behalf of the
Company, any property which the Company does not subsequently pay for
8. pawns, pledges or disposes of any property of the Company which has been obtained on credit and has not been paid
for, unless such pawning, pledging or disposing of the property is in the ordinary course of business of the Company

9. 9
It shall be a good defence if the accused proves that he had no intent to defraud or to conceal
the true state of affairs of the Company or to defeat the law
Where any person pawns, pledges or disposes of any property in circumstances which amount to
an offence (as mentioned in previous slide),
every person who takes in pawn or pledge or otherwise receives the property, knowing it to
be pawned, pledged, or disposed of which has been obtained on credit and has not been
paid for,
shall be punishable with imprisonment for 3 to 5 years and with fine ranging from Rs. 3 lakhs
to 5 lakhs

10. Penalty for Frauds by Officers – Sec 337
10

11. If any person, being at the time of the commission of the alleged offence, an officer of a
Company which is subsequently ordered to be wound up by the Tribunal under the Act,
has, by false pretences or by
means of any other fraud,
with intent to defraud creditors of the Company or
any other person, has made or caused to be made
with intent to defraud Company’s creditors, has concealed
or removed any part of the property of the Company
any gift or transfer of, or charge on, or has caused
or connived at the levying of any execution
against, the property of the Company; or
since the date of any unsatisfied judgment or order for
payment of money obtained against the Company or
within two months before that date
induced any person to give
credit to the Company; or
he shall be punishable with imprisonment for 1 to 3 years and
with fine ranging from Rs. 1 lakh to 3 lakhs

12. Liability Where Proper Accounts not Kept –
Sec 338
12

13. 13
be punishable with imprisonment for 1 to 3 years and with fine ranging from Rs. 1 lakh to 3 lakhs
every officer of the Company who is in default shall, unless he shows that he acted honestly and that in the
circumstances in which the business of the Company was carried on, the default was excusable,
throughout the period of 2 years immediately preceding the commencement of the winding up, or the period
between the incorporation of the Company and the commencement of the winding up, whichever is shorter,
Where a Company is being wound up, if it is shown that proper books of account were not kept by the Company

14. 14
It shall be deemed that proper books of account have not been kept in the case of any
Company under the following two situations:
If such books of account as are necessary to
exhibit and explain the transactions and financial
position of the business of the Company,
including books containing entries made from
day-to-day in sufficient detail of all cash received
and all cash paid, have not been kept
Where the business of the
Company has involved dealings in
goods, statements of the annual
stock takings and,
except in the case of goods sold by
way of ordinary retail trade, of all
goods sold and purchased,
showing the goods and the buyers
and the sellers thereof in sufficient
detail to enable those goods and
those buyers and sellers to be
identified, have not been kept.
1.
2.

15. Liability for Fraudulent Conduct of Business
– Sec 339
15

16. 16
If in the course of the winding up of a Company, it appears that any business of the Company has been carried on
with intent to defraud creditors of the Company or any other persons or for any fraudulent purpose,
the Tribunal, on the application of the Official Liquidator, or the CL or any creditor or contributory of the Company,
may, if it thinks it proper so to do,
declare that any person, who is or has been a director, manager, or officer of the Company or any persons who were
knowingly parties to the carrying on of the business in the manner aforesaid
shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the
Company as the Tribunal may direct
On the hearing of an application as mentioned above, the Official Liquidator or the CL, as the
case may be, may himself give evidence or call witnesses

17. 17
Where the Tribunal makes any such declaration, it may give such further directions as it thinks proper for
the purpose of giving effect to that declaration and, in particular,
a. make provision for making the liability of any such person under the declaration,
a charge on any debt or obligation due from the Company to him, or
on any mortgage or charge or any interest in any mortgage or charge on any
assets of the Company held by or vested in him, or any person on his behalf, or
any person claiming as assignee from or through the person liable or any person
acting on his behalf
b. make such further order as may be necessary for the purpose of enforcing any charge
imposed under this provision
Where any business of a Company is carried on with a fraudulent intent, every person who was knowingly a
party to the carrying on of the business in the manner aforesaid, shall be liable for action under Sec 447

18. 18
Sec 339 shall apply, notwithstanding that the person concerned may be punishable under any other law for
the time being in force in respect of the matters on the ground of which the declaration is to be made
For the purposes of Sec 339,
“Assignee” includes any
person to whom or in
whose favour, by the
directions of the
person liable,
the debt, obligation,
mortgage or charge
was created, issued or
transferred or the
interest was created,
but does not include an assignee for
valuable consideration, not including
consideration by way of marriage,
given in good faith and without notice
of any of the matters on the ground of
which the declaration is made

19. Power of Tribunal to Assess Damages Against
Delinquent Directors, etc. – Sec 340
19

20. 20
or to contribute such sum to the assets of the Company by way of compensation in respect of the misapplication,
retainer, misfeasance or breach of trust, as the Tribunal considers just and proper
and order him to repay or restore the money or property or any part thereof respectively, with interest at such rate
as the Tribunal considers just and proper,
inquire into the conduct of the person, director, manager, CL or officer aforesaid,
Tribunal may, on the application of the Official Liquidator, or the CL, or of any creditor or contributory, made *within
the specified period* (discussed in subsequent slide),
If in the course of winding up of a Company, it appears that any person who has taken part in the promotion or
formation of the Company, or any person, who is or has been a director, manager, CL or officer of the Company,
 has misapplied, or retained, or become liable or accountable for, any money or property of the Company;
or
 has been guilty of any misfeasance or breach of trust in relation to the Company,

21. An application under
this Sec shall be made
within 5 years from
the date of the winding
up order, or
the date of the first
appointment of the CL in the
winding up, or
the date of the misapplication,
retainer, misfeasance or breach
of trust, as the case may be,
whichever is longer
Sec 340 shall apply, notwithstanding that the matter is one for which the person concerned may be criminally liable

22. Liability Under Sections 339 and 340 to Extend
to Partners or Directors in Firms or Companies
– Sec 341
22

23. 23
Where a declaration under Sec 339 or an order under Sec 340 is made in respect of a firm
or body corporate,
the Tribunal shall also have power to make a declaration under Sec 339, or pass an
order under Sec 340, as the case may be, in respect of any person
who was at the relevant time a partner in that firm or a director of that body corporate

24. Prosecution of Delinquent Officers and
Members of Company – Sec 342
24

25. If it appears to the Tribunal in
the course of a winding up by
the Tribunal,
that any person, who is or has
been an officer, or any
member, of the Company
has been guilty of any offence
in relation to the Company,
the Tribunal may, either on the
application of any person interested in
the winding up or suo motu,
direct the liquidator to prosecute the offender
or to refer the matter to the Registrar

26. 26
When any prosecution is
instituted under this Sec,
it shall be the duty of
the liquidator and of
every person,
who is or has
been an officer
and agent* of
the Company
to give all assistance in
connection with the
prosecution which he is
reasonably able to give
* Agent, in relation to a Company, shall include any banker or legal adviser of the Company and
any person employed by the Company as auditor
If a person fails or neglects to give assistance required as per this provision, he shall be liable to
pay fine ranging from Rs. 25,000 to Rs. 1 lakh

27. Statement that Company is in Liquidation –
Sec 344
27

28. 28
Where a Company is being wound up, whether by the Tribunal or voluntarily,
every invoice, order for goods or business letter issued by or on behalf of the
Company or a CL of the Company, or a receiver or manager of the property
of the Company,
being a document on or in which the name of the Company appears, shall
contain a statement that the Company is being wound up
If a Company contravenes the above provision, the Company, and every officer of the Company, the CL and any receiver or manager,
who wilfully authorises or permits the non-compliance, shall be punishable with fine ranging from Rs. 50,000 to Rs. 3 lakhs

29. Books and Papers of Company to be Evidence
– Sec 345
29

30. 30
Where a Company is being wound up, all books and papers of the
Company and of the CL shall,
as between the contributories of the Company, be prima facie evidence of
the truth of all matters purporting to be recorded therein

31. Inspection of Books and Papers by Creditors
and Contributories – Sec 346
31

32. 32
At any time after the making of an order for the winding up of a Company by the Tribunal, any creditor or
contributory of the Company may inspect the books and papers of the Company only in accordance with,
and subject to such rules as may be prescribed
Every contributory and every creditor, whose claim or proof has been admitted, shall be entitled, at all
reasonable times to inspect the file of proceedings on payment of Rs. 100 and to be furnished with
copies and extracts from any document therein at the rate of Rs. 5 per page
Nothing contained in this Sec shall exclude or restrict any rights conferred by any law for the time being in force,
a. on the Central Government or a State Government;
b. on any authority or officer thereof; or
c. on any person acting under the authority of any such Government or of any such authority or officer

33. Disposal of Books and Papers of Company –
Sec 347
33

34. 34
When the affairs of a Company have been completely wound up and it is about to be dissolved, the books
and papers of such Company and those of CL may be disposed of in such manner as the Tribunal directs
After the expiry of 5 years from the dissolution of the Company, no responsibility shall devolve on the
Company, CL, or any person to whom the custody of the books and papers has been entrusted, by reason
of any book or paper not being forthcoming to any person claiming to be interested therein
Central Government may, by rules,
a. prevent for such period as it thinks proper the destruction of the books and papers of a Company
which has been wound up and of its CL; and
b. enable any creditor or contributory of the Company to make representations to the Central
Government in respect of the matters specified in point (a) and to appeal to the Tribunal from any
order which may be made by the Central Government in the matter
If any person acts in contravention of any rule framed or an order made as mentioned above, he shall be
punishable with imprisonment up to 6 months or with fine which may extend to Rs. 50,000, or with both

35. Information as to Pending Liquidations
– Sec 348
35

36. with respect to the proceedings in, and position of, the liquidation, with the Tribunal
file a statement in such form containing such particulars *as may be prescribed*, duly audited, by a person
qualified to act as auditor of the Company,
within 2 months of the expiry of such year and thereafter until the winding up is concluded, at intervals of
not more than 1 year or at such shorter intervals, if any, *as may be prescribed*,
CL shall, unless he is exempted from so doing, either wholly or in part by the Central Government,
If the winding up of a Company is not concluded within 1 year after its commencement,
No such audit as is referred to in the above provision shall be necessary where the provisions of Sec 294 apply
Sec 294 deals with Audit of CL's Accounts
* Till date, the procedure is not prescribed

37. 37
When the statement is filed with the Tribunal under this Sec, a copy shall simultaneously be filed with the
Registrar and shall be kept by him along with the other records of the Company
Where a statement referred to in this Sec relates to a Government Company in liquidation, CL shall forward
a copy thereof,
a. to the Central Government, if that Government is a member of the Government Company;
b. to any State Government, if that Government is a member of the Government Company; or
c. to the Central Government and any State Government, if both the Governments are members of the
Government Company
Any person stating himself in writing to be a creditor or contributory of the Company shall be entitled, by
himself or by his agent, at all reasonable times, on payment of the prescribed fee, to inspect the statement
referred to in this Sec, and to receive a copy thereof or an extract therefrom
Every contributory and every creditor, whose claim or proof has been admitted, shall be entitled, at all
reasonable times to inspect the file of proceedings on payment of Rs. 100 and to be furnished with copies
and extracts from any document therein at the rate of Rs. 5 per page

38. 38
Any person fraudulently stating himself to be a creditor or contributory to inspect the statement or
receive copy / extract, shall be deemed to be guilty of an offence under Sec 182 of the Indian Penal Code,
and shall, on the application of CL, be punishable accordingly
Sec 182 of the Indian Penal Code deals with “False information, with intent to cause public servant to use
his lawful power to the injury of another person”
If a CL contravenes the provisions of this Sec, he shall be punishable with fine which may extend to Rs.
5,000 for every day during which the failure continues
If a CL makes wilful default in causing the statement referred to in this Sec audited by a person who is not
qualified to act as an auditor of the Company, CL shall be punishable with imprisonment up to 6 months
or with fine which may extend to Rs. 1 lakh, or with both

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