TaxTMI 
TaxTMI 
2014 (11) TMI 1153
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....e above said Company. The petitioner was residing at Mumbai, Mahrashtra with her family and children. Thereafter, a resolution was passed on 18.02.2013 (P-3) accepting and acknowledging the resignation made by the petitioner. After accepting the resignation of the petitioner, the relationship of petitioner with respondent No. 2-company stood severed and terminated from that date. Thereafter, the petitioner did not even attend/or participate in any further Board meeting of the company. Petitioner stood absolved from her functions/responsibilities as a Director with immediate effect. The respondent No. 2-company was required to follow up all consequential actions towards intimating all including the Registrar of Companies-about the petitioner's resignation. In CRM-M-36249 and 36401 of 2013, petitioner Naveen Kumar Aggarwal became an additional director of M/s Miraaya Apparel and Trading Pvt. Ltd on 14.05.2012. Thereafter, he resigned from the Board of Directors on 21.02.2013 and is full time employee of Bank of America since 11.12.2006. The said change was communicated to the Registrar of Companies in June, 2013. A photocopy of Form 32 is Annexure P-7 colly. As per complaint No....
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...., a reply has been filed by M/s Dove Creations and M/s Almighty Creations Pvt. Ltd. wherein the stand taken by them was that petitioners were in active control of the business of M/s Miraaya Apparel and Trading Pvt. Ltd.. The specific allegations have been made against the petitioners that they were directors of M/s Miraaya Apparel and Trading Pvt. Ltd and were responsible in day to day affairs of the company, who in discharge of its preexisting legally enforceable liability issued two above said cheques, which on presentation for encashment, were dishonored with remarks "Exceeds arrangement" by Bank, vide memo dated 28.05.2013. The defence taken by the petitioners that they had resigned as Directors of the Company, will be considered at the final stage of the trial as the genuineness of both the documents in case of Smriti Thingbaijam i.e letter dated 16.02.2013 (P-2) and copy of Board resolution 18.02.2013 (P-3) are being disputed on account of being forged and fabricated and this aspect cannot be gone in the proceedings under Section 482 Cr.P.C. Moreover, the information with regard to her resignation by the Board of Directors was communicated to the Registrar of Companies on 16....
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.... on 16.09.2013 regarding the resignation of the petitioner Smriti Thingbaijam. Learned counsel for the respondents has referred to judgments i.e Kailash Chand Jain vs. M/s Bibby Financial Services India Pvt. Ltd, 2014 (2) RCR Crl (185), Paresh P. Rajda v. State of Maharashtra and anr, 2008 (3) R.C.R (Crl.) 140, K.K. Ahuja vs. V.K. Vora and another, 2009 (3) R.C.R (Crl.) 571 and Partik Jain vs. Ved Prakash Kaushik and another, 2014 (1) R.C.R (Crl) 964 to contend that as per allegations in the complaint, there was specific allegations against the petitioners involvement in day to day affairs of the functioning of the company. Even after resigning as Director, the complaint under Section 138 N.I. Act can be proceeded against the petitioners. Heard learned counsel for the parties and have gone through the facts of the case. The question to be decided by this Court would be the role of the petitioners as Directors at the time of filing of the complaints dated 09.07.2013. A perusal of the complaints shows that petitionersSmriti Thingbaijam and Naveen Kumar Aggarwal were directors of the Company and were dealing with the complainant-Companies i.e M/s Dove Creation Pvt. Ltd and M/s Alm....
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....who, at the time the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence etc." What is required is that the persons who are sought to be made criminally liable under Section 141 should be at the time the offence was committed, in charge of and responsible to the company for the conduct of the business of the company. Every person connected with the company shall not fall within the ambit of the provision. It is only those persons who were in charge of and responsible for conduct of business of the company at the time of commission of an offence, who will be liable for criminal action. It follows from this that if a director of a Company who was not in charge of and was not responsible for the conduct of the business of the company at the relevant time, will not be liable under the provision." Thereafter, Hon'ble the Supreme had quashed the proceedings against the Director who had resigned prior to the issuance of the cheque. In a landmark judgment of Hon'ble the Supreme Court "National Small Industries Corporation Ltd vs. Harmeet Singh....
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....e. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents - which are beyond suspicion or doubt - placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage." Recently, Hon'ble the Supreme Court in a case of Anita Malhotra vs. Apparel Export Promotion Council and anr, 2012 (1) SCC 520 while examining the provisions of the Evidence Act, has held that the certified copies of annual returna coupled with sample copy of Form 32 should have been accepted as proof of resignation of the applicant from the post of Director. In....
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.... sent to the Registrar a return in duplicate containing the particulars specified in the Register. In the change among Directors, Managing Directors, Managers or Secretaries specifying the date of change is also required to be furnished to the Registrar of Companies in the prescribed form within 30 days of such change. At this stage, reference can be made to judgment of Bombay High Court in a case of Saumil dilip Mehta vs. State of Maharashtra and others, AIR 2002 Bombay 194 wherein the Court was considering a case under the Companies Act under Section 303(2). Form 32. For all intents and purposes, the Director once gives his resignation, he ceases to be a Director of the Company. He is not required to fill Form No. 32 or issue notice to Registrar of Companies. In paragraph 7, it has been held as under:- "7. When a director has tendered his resignation and the Board of Directors has accepted and has acted on it ,such Director cannot be held liable for the liability incurred by the said Company after the date of acceptance of his resignation except the liability which has been incurred by him for purchase of shares of the said company and nothing more." Hon'ble Delhi High C....