TaxTMI 
TaxTMI 
2019 (11) TMI 1153
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.... Amount Date 1. CRM-M-22417-2019 360192 Rs. 3,17,715/- 15.12.2016 360650 Rs. 6,45.90/- 08.04.2017 2. CRM-M-23877-2019 348126 Rs. 6300/- 23.05.2016 348046 Rs. 1,39,715.10/- 23.06.2016 3. CRM-M-23844-2019 347971 Rs. 1,03,240.80/- 17.06.2016 4. CRM-M-23832-2019 348027 Rs. 3,01,210.20/- 16.07.2019 5. CRM-M-23819-2019 350649 Rs. 2,14,070/- 08.12.2016 6. CRM-M-23838-2019 348081 Rs. 1,70,611.20/- 27.06.2016 7. CRM-M-23779-2019 348362 Rs. 59,844.60/- 22.08.2016 348294 Rs. 7,00,000/- 21.07.2016 348295 Rs. 8,00,000/- 16.07.2016 8. CRM-M-23800-2019 348280 Rs. 6,49,821/- 19.07.2016 348353 Rs. 34,241.40/- 22.08.2019 9. CRM-M-23812-2019 348002 Rs. 46,120.50/- 23.05.2016 10. CRM-M-23772-2019 348949 Rs. 1,59,842.70/- 27.06.2016 11. CRM-M-23833-2019 348998 Rs. 1,69,106.40/- 27.06.2016 12. CRM-M-23794-2019 348018 Rs. 70,477.20/- 25.05.2016 348167 Rs. ....
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....7935 Rs. 82,757.50/- 25.05.2016 348165 Rs. 14,310/- 21.06.2016 38. CRM-M-25929-2019 348086 Rs. 1,16,226/- 17.06.2016 348376 Rs. 1,290/- 24.08.2016 39. CRM-M-23913-2019 348103 Rs. 55,350/- 16.05.2016 40. CRM-M-26301-2019 347975 Rs. 39,706.20/- 18.05.2016 41. CRM-M-25289-2019 347957 Rs. 1,73,260.80/- 27.06.2016 42. CRM-M-25924-2019 348398 Rs. 3,649/- 20.08.2016 348339 Rs. 1,84,985/- 22.07.2016 43. CRM-M-25963-2019 348266 Rs. 3,47,992/- 27.05.2016 347946 Rs. 1,52,945.10/- 23.06.2016 348344 Rs. 10,039.50/- 18.08.2016 44. CRM-M-25171-2019 347765 Rs. 3,81,315.03/- 26.06.2016 45. CRM-M-30940-2019 348063 348245 Rs. 2,16,538.20/- Rs. 14,400/- 23.08.2016 26.07.2016 46. CRM-M-23852-2019 348319 Rs. 8,00,000/- 29.06.2016 348188 Rs. 1,473/- 19.07.2016 347963 Rs. 5,28,356.70/- 21.07.2016 47. CRM-M-23828-2019 34829234 Rs. 2,65,901/- 12.....
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.....2017 68. CRM-M-30984-2019 079778 Rs. 1,52,333/- 27.07.2016 69. CRM-M-31005-2019 348281 Rs. 10,00,000/- 21.06.2016 347978 Rs. 1,77,700.50/- 27.06.2016 70. CRM-M-31008-2019 348015 Rs. 87,237.90/- 23.05.2016 71. CRM-M-31028-2019 347966 Rs. 30,601.80/- 18.05.2016 72. CRM-M-31072-2019 348134 Rs. 4,602/- 23.05.2016 348064 Rs. 1,93,527.90/- 19.08.2016 73. CRM-M-30966-2019 348303 Rs. 1,29,280/- 18.06.2016 348039 Rs. 1,32,060.60/- 20.06.2016 348196 Rs. 5,940/- 22.07.2016 74. CRM-M-31044-2019 347936 Rs. 1,26,908.10/- 20.06.2016 75. CRM-M-31066-2019 739723 Rs. 2,86,464/- 25.07.2016 079791 Rs. 2,86,305/- 28.07.2016 079799 Rs. 5,00,000/- 30.07.2016 76. CRM-M-31060-2019 348348 Rs. 21,871.80/- 18.08.2016 347954 Rs. 2,10,413.70/- 19.08.2016 77. CRM-M-25991-2019 347767 Rs. 1,51,523.97/- 16.06.2016 78. CRM-M-23881-2019 347933 Rs. 92,550.60/....
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.... 348381 Rs. 8,742.60/- 26.08.2016 100. CRM-M-24140-2019 350614 Rs. 10,77,565/- 09.03.2017 101. CRM-M-23864-2019 347956 Rs. 1,37,887.20/- 20.06.2016 102. CRM-M-23863-2019 348290 Rs. 2,77,624/- 12.08.2016 348359 Rs. 6,113.70/- 22.08.2016 347996 Rs. 1,44,057.60/- 23.08.2016 103. CRM-M-25381-2019 350202 Rs. 3,84,015/- 04.11.2016 Since the facts in all the complaints as well as grounds taken by the petitioner in all the petitions are identical, the same are taken from CRM-M-22417-2019. The complainant filed the impugned complaint under Section 138 of N.I. Act with the following averments: - "That accused No.2 to 7 are active directors of accused No.1. The accused No.2 to 7 are actively involved in the business of accused No.1. The accused No.2 to 7 are jointly and severally carry out business operations of accused No.1 which includes purchase of raw material i.e. paddy from different grain markets, transport of paddy to their premises, milling of paddy, converting it into rice, selling rice and its by products which includes ric....
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....he cheque in question. Hence, this complaint. In preliminary evidence, the complainant has himself appeared as CW-1 and has also tendered his affidavit Ex.CW1/A along with Ex.C1 to Ex.C22. In view of the evidence and documents as discharged above, a prima facie case for the commission of offence punishable under Section 138 of the Negotiable Instruments Act is made out against the accused. Let the accused be summoned for the commission of offence punishable under Section 138 of the Negotiable Instruments Act for 14.07.2017. Sd/- SDJM/Safidon" The petitioner, thereafter, filed a revision petition before the Court of Sessions, however, on 18.02.2019, the same was withdrawn by the petitioner to approach the trial Court for discharging him on the grounds taken in the revision petition. The revisional Court, after recording statement of counsel for the parties, passed the following order: - "Joint statement of counsel for the parties recorded. Heard. The present revision petition is disposed of in terms of the joint statement made by the counsel for the parties. The parties through their counsel are directed to appear before the trial Court on 01.0....
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....affixed with any liability under section 138 N.I. Act. Further, it has been argued that the applicant was never an active director of accused no.1 company at any point of time and it has been argued that in a recent order dated 30.10.2018 passed by the Hon'ble Punjab and Haryana High Court in CRM-M-36869-2018, a responsibility has now been fixed on the complainant to file copy of Form No. 32 and the annual Return filed by the company in order to determine the persons, who were Directors on the date of commission of the offence except in cases where the accused-Director is the Chairman or Managing Director or Joint Managing Director or authorized signatory of the cheque. It has further been argued that the applicant never held any shares in accused no.1 company, which further implies that the applicant never played any active role in the business affairs of the accused no.1 company. With these submissions, it has been prayed that the application may kindly be allowed and in support of his contentions, the ld. Counsel for the applicant/accused has placed reliance on cases titled as Harshendra Kumar D. Vs. Rebatilata Koley etc., 2011(3) SCC 351, Mrs. Anita Malhotra Vs. Apparel Export ....
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....) 1237 and prayed that the application in hand may kindly be dismissed. The present application has been filed by the applicant for dropping proceedings qua him mainly on the ground that he had already resigned as Director from accused no.1 company on 21.1.2016, which is much prior to the date of issuance of cheques in question. It is pertinent to mention that the present complaint is with respect to the cheques alleged to have been issued by the accused persons with respect to paddy being purchased by accused no.1 company from the complainant on 14.02.2015 for an amount of Rs. 3,17,715/- and it is not a disputed fact that during the said period the applicant/accused was very well on Board of Directors of accused no.1 company. It is a matter of very common practice that purchasers often issue post dated cheques at the time of purchase of articles with assurance of encashment of such cheques at the later stage and since the applicant was director during the period when the transaction of purchase of paddy had taken place, at this stage he cannot be outrightly said to be not responsible for that. Moreover, if the liability of the directors is waived off on the ground of thei....
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....ssion made herein above, there being on merits in the application in hand, the same is hereby dismissed." Present petitions have been filed for quashing of the impugned complaints, the summoning orders and the orders dismissing the applications for dropping the proceedings/for discharging the petitioner. Since while issuing notice of motion, further proceedings before the trial Court qua the petitioner were stayed, all these matters are taken up in the urgent list. Learned counsels for the petitioner have argued that the petitioner has resigned from directorship of the accused-company w.e.f. 21.01.2016 and the cheques were issued subsequently and therefore, the petitioner is not liable to be prosecuted. It is further argued that the petitioner has submitted the information to the Registrar of Companies in Form No.DIR-11 and later on, duly authorized director of the accused- company had furnished Form No.DIR-12 as well, intimating that the petitioner has resigned from directorship of the accused-company w.e.f. 21.01.2016. It is also argued that there is no specific averments in the complaint that the petitioner was an active partner and the person responsible for the day to....
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....ime to time and during the financial year 2014-2015, the accused paid some amount to the complainant(s), as given in all the complaints and further detail is given that during the financial year 2014-2015, the accused have purchased paddy on the given dates from the complainant(s). The statements of account of accused-company for the years 2014-2015, 2015-2016 and 2016-2017 are attached with the complaints. Learned counsels, on the basis of averments made in paras No.2 to 5 of the complaint, have argued that once the outstanding amount against the accused-company, which was due towards the complainant(s), was duly reflected in their books of account for the relevant financial years starting from 2014-2015 onwards, liability is admitted towards the company. It is further argued that neither in the application(s) for discharge, attached with the present petitions nor in these petitions, the petitioner has denied the fact that when the accused-company was purchasing the paddy, he was a director of the company. It is next argued that in the applications for discharge or in the present petitions, it is not denied that when the purchases were made, the petitioner was not active direct....
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....nts of the Hon'ble Supreme Court, relied upon by learned counsels for the petitioner, that a non-executive director or a director, who has resigned prior to issuance of the cheque(s), cannot be prosecuted and there should be a specific averment in the complaint that the director was incharge and responsible for the conduct of business of the accused-company. It is also not disputed that Form No.32 issued by the Registrar of Companies is a proof of resignation of the director. However, on appreciation of the pleadings and facts of the present cases, I do not find any merit in the present petitions, for the following reasons: - (a) The petitioner has, intentionally, not attached Form No.32 to show the date, when his resignation was accepted by Registrar of Companies. As per Rule 16 of the Companies (Appointment and Qualification of Directors) Rules, 2014 (for short 'Rules of 2014'), a director of the company, upon resignation, will forward his resignation in Form No.DIR-11 along with fees. Thereafter, as per Rules 15 & 18 of the Rules of 2014, the company will inform the Registrar of Companies in Form No.DIR-12 and will also post the information on the w....