Section 383: Offences relating to winding up

383. Offences relating to winding up (1) Every person who being a past or present officer or a contributory of a company which is being wound up— (a) does not to the best of his knowledge and belief fully and truly disclose to the liquidator all the property of the company and how and to whom and for what consideration and when the company disposed of any part of that property, except such part as has been disposed of in the ordinary way of the business of the company; (b) does not deliver up to the liquidator, as he directs— (i) all the property of the company in his custody, control or possession and which he is required by the liquidator to deliver up; or (ii) all books and papers in his custody, control or possession belonging to the company and which he is required by the liquidator to deliver up; (c) within 12 months preceding the commencement of the winding up or at any time thereafter— (i) has concealed any part of the property of the company to the value of 5,000 rupees or more, or has concealed any debt due to or from the company; (ii) has fraudulently removed any part of the property of the company to the value of 5,000 rupees or more; (iii) has concealed, destroyed, mutilated or falsified, or has been privy to the concealment, destruction, mutilation or falsification of, any document affecting or relating to the property or affairs of the company; I14 – 209 [Issue 3] Insolvency Act (iv) has made or has been privy to the making of any false entry in any document affecting or relating to the property or affairs of the company; (v) has fraudulently parted with, altered or made any omission in, or has been privy to fraudulently parting with, altering or making any omission in, any document affecting or relating to the property or affairs of the company; (vi) by any false representation or other fraud, has obtained any property for or on behalf of the company on credit which the company has not subsequently paid for; (vii) has obtained on credit, for or on behalf of the company, under the false pretence that the company is carrying on its business, any property which the company has not subsequently paid for; or (viii) has pawned, pledged or disposed of any property of the company which has been obtained on credit and has not been paid for, unless such pawning, pledging or disposing was in the ordinary way of the business of the company; (d) makes any material omission in any statement relating to the affairs of the company; (e) knowing or believing that a false debt has been proved by any person, fails for a period of 28 days to inform the liquidator of that fact; (f) prevents the production of any document affecting or relating to the property or affairs of the company; (g) within 12 months preceding the commencement of the winding up or at any time thereafter, has attempted to account for any part of the property of the company by fictitious losses or expenses; or (h) within 12 months preceding the commencement of the winding up or at any time thereafter, has been guilty of any false representation or other 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, shall commit an offence and shall, on conviction, be liable to a fine not exceeding 2,000,000 rupees and to imprisonment for a term not, exceeding 5 years, and the Court may order that the person being convicted shall not for a period not exceeding 5 ny time thereafter, has been guilty of any false representation or other 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, shall commit an offence and shall, on conviction, be liable to a fine not exceeding 2,000,000 rupees and to imprisonment for a term not, exceeding 5 years, and the Court may order that the person being convicted shall not for a period not exceeding 5 years from the date of the order, be a promoter or director of a company or be directly or indirectly concerned in the management of a company as may be specified in the order. (2) It shall be a defence to a charge under subsection (1) (a) or (b) or subparagraph (i), (vii) or (viii) of subsection (1) (c) if the accused proves that he had no intent to defraud, and to a charge under subsection (1) (e) or [Issue 3] I14 – 210 Revised Laws of Mauritius subparagraph (iii) or (iv) of subsection (1) (c) if he proves that he had no intent to conceal the state of affairs of the company or to defeat the purpose of this Act. (3) Where a person pawns, pledges or disposes of any property in circumstances which amount to an offence under subsection (1) (c) (viii), every person who takes in pawn or pledge or otherwise receives the property knowing it to be pawned, pledged or disposed of in those circumstances shall commit an offence and shall, on conviction, be liable to the penalties applicable to subsection (1). (4) Where, in relation to section 194 (3) (f), a director of a company fails to settle dues in respect of PAYE, NPF, Training Levy, Workfare Programme Fund on its due date, that person shall be personally liable for the total amount due, including all penalties, charges and interests thereon.