THE COMPANIES AMENDMENT BILL, 2016 [BILL 73 of 2016] – A REVIEW- PART-5 (continued from September-2016 wiki)
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Section(s) under the CA, |
Clause No. in the |
Proposed amendment relating to |
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2013, amended |
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Amendment Bill |
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74 |
S e c t i o n |
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3 8 4 |
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Amendment to Section (2) of Section 384 of the Act, to |
Amendment to remove ambiguity. |
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Debentures, |
Annual |
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include Section 135 of Act, thereby making the provisions of |
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Return, Registration of |
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Corporate Social responsibility CSR applicable to a Foreign |
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charges, |
books |
of |
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Company, in addition to the applicability of the provisions of |
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account |
and their |
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Section 71, 92, 128, Chapter-VI &Chapter-XIV of the Act. |
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inspection. |
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75 |
Section - 403 – Fee for |
76 |
Amendment to replace the existing 1st proviso to Sub-Section |
Welcome Amendment, to remove |
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filing, etc. |
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(1) of Section 403 of the Act, with new a proviso, so as to |
ambiguity |
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include the details of the relevant sections [i.e., 89, 92, 117, |
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121, 137 or 157] under which filings can be done within a |
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period of 270 days from the expiry of the period so provided in |
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those sections, on payment of such additional fee. |
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Amendment to replace the existing 2nd proviso to Sub-Section |
Welcome Amendment, to remove |
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(1) of Section 403 of the Act, with new a proviso, so as to |
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ambiguity and ease of operations. |
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enable filing of returns relating to the sections referred in the |
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1st proviso, beyond the time frame as given in the 1st proviso |
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and with regard to the other sections, beyond the time frame |
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given in the respective section, on payment of such higher |
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additional or additional fee. |
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Section(s) under the CA, |
Clause No. in the |
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Proposed amendment relating to |
Remarks/Comments/Penalty |
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No. |
2013, amended |
Amendment Bill |
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Insertion of a 3rd proviso to provide that in case of default on two |
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or more occasions in filing of returns under section 89, 92, 117, |
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121, 137 or 157, the provisions of the first and second provisos |
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shall not apply, until the return is submitted, filed, registered or |
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recorded, as the case may be, with additional fee, without |
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prejudice to any legal action or liability under this Act. |
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Amendment to Sub-Section (2) of Section 403 of the Act, to |
Amendment to remove ambiguity. |
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substitute the words "first proviso to that sub-section" with |
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words "relevant section”. |
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76 |
Section - 406 - |
77 |
Amendment to substitute the existing section 406 of the Act |
Amendment to give more clarity. |
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with a new section 406 with 5 sub-sections.. The new section |
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Power to modify Act in |
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is titled: “Provision relating to Nidhis and its application, etc.”. |
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its application to |
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The gist of the sub-sections is as below: |
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Nidhis. |
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(1) A word “Mutual Benefit Society” has been added, and |
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accordingly a Nidhi or a Mutual Benefit Society shall be a |
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company which the Central Government may by |
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notification in the Gazette, declare to be so. |
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(2) The Central Government may by notification in the |
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Gazette, direct the applicability or non-applicability of the |
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provisions of the Act to a Nidhi or Mutual Benefit Society. |
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(3) Placing of the draft of the proposed notification before |
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each House of Parliament, while it is in session, for a total |
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period of 30 days, and if, both Houses agree in |
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disapproving the issue of notification or both Houses |
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agree in making any modification in the notification, the |
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notification shall not be issued or, as the case may be, shall |
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be issued only in such modified form as may be agreed |
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upon by both the Houses. |
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Sl. |
Section(s) under the CA, |
Clause No. in the |
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Proposed amendment relating to |
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Remarks/Comments/Penalty |
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No. |
2013, amended |
Amendment Bill |
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(4) For the purpose of reckoning the period of 30 days, referred |
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to in sub-section (3), any period during which the House |
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referred to in sub-section (3), is prorogued or adjourned for |
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more than four consecutive days, shall not be counted. |
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(5) Laying of Copies of every notification, before each House of |
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Parliament, as soon as may be after it has been issued. |
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77 |
Section – 409 – |
78 |
Amendment to Sub-Section (3) of Section 409 of the Act, in |
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Qualification of |
connection with the eligibility of the Technical members of the |
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President and |
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National Company Law Tribunal. |
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Members of Tribunal. |
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78 |
Section 411– |
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Amendment to Sub-Section (3) of Section 411 of the Act, in |
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Qualifications of |
connection with the eligibility of the Technical members of the |
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chairperson And |
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National Company Law Appellate Tribunal. |
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Members of Appellate |
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Tribunal. |
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Section – 412 - |
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Amendment to Sub-Section (2) of Section 412 of the Act, in |
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Selection of |
connection with the constitution of the Selection Committee, |
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Members of Tribunal |
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to recommend the appointment of Members to the National |
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and Appellate |
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Company Law Tribunal and the National Company Law |
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Tribunal. |
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Appellate Tribunal. |
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Section - 435 – |
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Substitution of the existing Section 435 of the Act, with a new |
Welcome Amendment to remove |
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section, to |
amend provide for |
appointment |
by |
Central |
ambiguity. |
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Establishment of |
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Government |
of Metropolitan |
Magistrate or |
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Judicial |
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Special Courts. |
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Magistrate of the First Class in Special Court in case of offences |
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punishable under the Act with imprisonment less than 2 years. |
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The appointment by the Central Government shall be with the |
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concurrence of the Chief Justice of the High Court within whose |
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jurisdiction the judge to be appointed is working. |
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Sl. |
Section(s) under the CA, |
Clause No. in the |
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Proposed amendment relating to |
Remarks/Comments/Penalty |
No. |
2013, amended |
Amendment Bill |
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81 |
Section – 438 – |
82 |
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Amendment of Section 438 of the Act, consequent upon the |
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proposed amendment to Section 435 of the Act, thereby to |
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Application of Code to |
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replace the words "deemed to be a Court of Session", with the |
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Proceedings before |
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words "deemed to be a Court of Session or the court of |
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Special Court. |
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Metropolitan Magistrate or a Judicial Magistrate of the First |
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Class, as the case may be". |
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82 |
Section – 439 - |
83 |
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Amendment to Sub-section (2) of Section 439 of the Act to |
Welcome Amendment to remove |
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include ”Member” in addition to the shareholders, for |
ambiguity. |
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Offences to be non- |
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making a complaint with respect to taking cognizance of |
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cognizable. |
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offences under the Act by the Court. |
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83 |
Section – 440– |
84 |
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Amendment to Section 440 of the Act to provide that till |
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Special Courts are established, the trial of offences shall be |
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Transitional provisions. |
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continued with Court of Sessionor Court of Metropolitan |
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Magistrate or a Judicial Magistrate of the First Class, thereby |
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to replace the words " Court of Session", appearing in the |
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section with the words " Court of Session or the court of |
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Metropolitan Magistrate or a Judicial Magistrate of the First |
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Class, as the case may be. |
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84 |
Section –441 – |
85 |
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Amendment to Sub-Section (1) of Section 441 of the Act to |
Welcome Amendment, giving |
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replace the words "with fine only", appearing in the Sub- |
further scope to compound |
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Compounding of |
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Section, with the words "not being an offence punishable with |
o f f e n c e s p u n i s h a b l e w i t h |
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certain offences |
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imprisonment only, or punishable with imprisonment and also |
imprisonment or with Fine, with |
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with fine". |
imprisonment or with Fine or both |
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with out the special permission of |
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NOTE: Consequent upon amendment to Sub-Section (1) of |
the Special Court. |
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Section 441, the clause (a) of Sub-Section (6) of Section 441, |
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also needs amendment, but seems to have been missed out |
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in the proposed amendment bill. |
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Sl. |
Section(s) under the CA, |
Clause No. in the |
Proposed amendment relating to |
Remarks/Comments/Penalty |
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No. |
2013, amended |
Amendment Bill |
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85 |
New Section |
86 |
Insertion of 2 new sections 446A & 446B, after the existing |
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Section 446. |
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Section 446A : Factors for determining level of punishment. |
Welcome inclusion |
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The new Section provides that the court or the Special Court, |
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shall consider the following factors, to decide the amount of |
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fine or imprisonment under this Act. |
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(a) size of the company; (b) nature of business carried on by |
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the company;(c) injury to public interest;(d) nature of the |
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default; and(e) repetition of the default. |
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Section 446B: Lesser penalties for One Person Companies or |
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small companies |
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If a One Person Company or a small company fails to comply |
Welcome inclusion in favour of One |
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with the provisions of Section 92(5), Section 117(2)(c),Section |
Person Companies and Small |
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137(3), such company and officer in default of such company |
Companies and the officers, |
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shall be punishable with fine or imprisonment or fine and |
reducing fine and imprisonment. |
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imprisonment, as the case may be, which shall not be more |
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than one-half of the fine or imprisonment or fine and |
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imprisonment, as the case may be, of the minimum or |
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maximum fine or imprisonment or fine and imprisonment, as |
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the case may be, specified in such sections. |
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Note: It is noticed that in the amendment bill they have |
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referred Section 117 (2)(c), but the said sub-section does not |
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contain any clauses, and it is assumed probably it is relating to |
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Section 117 (3)(c) and not Section 117 (2)©. |
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