TaxTMI 
TaxTMI 
2021 (10) TMI 1089
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....o his personal reasons. Thereafter, the petitioner addressed a letter dated 05.09.2013 to the Board of Directors of the company stating that he had resigned from the company as Director, Managing Director and all executions of the Company. The petitioner was in no way connected with the company or in the day today functioning of the company as on 05.09.2013. At present, the petitioner is working in Nigeria, he had twenty plus years of international experience in business development and marketing, finance and fund raising, organisation building and general management. The petitioner through one of the accused, viz., Director had came to know about the case in E.O.C.C No.299 of 2015 was filed before the learned Addl. Chief Metropolitan Magistrate, E.O.-I, Allikulam, Moore Market, Chennai on receipt of the complaint lodged by the respondent for non-appointment of Woman Director in the company and took up steps to follow the same. 3. It is the further case of the petitioner that the respondent had filed a complaint under Section 149 of the Companies Act, 2013 and as per the same, the company, should have appointed atleast one Woman Director as on 01.04.2015 and the respondent held th....
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....the respondent had filed the case against five directors including this petitioner. Further, both the cases have been filed at the same time and it is not possible to comprehend the decision of the respondent to leave out other directors in the present complaint. This clearly shows that the respondent has mechanically prosecuted the complaints. 6. The learned counsel for the petitioner also submits that the petitioner has changed his previous residence address during January, 2013, hence the petitioner was not aware of the proceedings of the respondent at the initial stage. Further, the petitioner has also bonafidely written to the respondent expressing his willingness to co-operate with them. At present, the petitioner has also filed Form No.DIR-11 before the respondent, as per Section 168[1] of the Companies Act 2013 giving notice of resignation with effect from 05.09.2013. 7. Lastly, it is represented on behalf of the petitioner that in the absence of any prima facie case and in the absence of any overt act attributed against this petitioner, the continuation of criminal prosecution against the petitioner would cause irreparable loss and mental agony and the petitioner at pres....
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....rial personnel shall be filed with the Registrar within 30 days from the appointment of every Director and key managerial personnel as the case may be and within 30 days of any change taking place. Further, a return containing the particulars of appointment of Director or key managerial personnel and changes therein shall be filled with the Registrar in Form DIR-12 along with such fee as may be provided in the Companies (Registration offices and Fees) Rules, 2014 within thirty days of such appointment or change as the case may be. 10. The learned counsel for the respondent projects a plea that a prima facie case has been made out against the petitioner and the petitioner is an officer in default within the meaning of Section 2(60) of Companies Act, 2013, which clearly states that "officer who is in default" for the purpose of any provision in this Act, which enacts that an officer of the company, who is in default shall be liable to any penalty or punishment by way of imprisonment, fine or otherwise. Moreover, the resignation is taken on record only by way of filing Form 32/DIR-12 with the respondent's office and as per the records maintained in the office, the petitioner cont....
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....ted resignation on 20.10.2012 and the attachment of the said letter on 05.09.2013, however, till date on an inspection of the MCA Website, the petitioner's name has not been removed from the list of Directors. The said letter proceeds to state that the same clearly amounts to a willful neglect on their part and amounts to misleading the public at large and an offence within the provisions of the Companies Act and requested to take appropriate steps to have the petitioner's name deleted as a Director of the Company and to take suitable action against the erring company and its Directors. On 30.04.2014, a letter has been sent by the Asst.Registrar of Companies, Tamilnadu to the company stating that Form No.32 has not been filed for the resignation of the petitioner as Managing Director and thereby directed the company to offer comments within 10days from the receipt of the said letter. Again, on 22.08.2014, the petitioner has sent a follow-up letter to the respondent requesting to take appropriate steps to delete his name as a Director of a Company and to take suitable action against the erring company. 15. It is pertinent to point out that on 17.03.2015, the Regional Direct....
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....how cause notice and sought four weeks time to comply with the notice dated 17.03.2015. 17. On an examination of the entire materials placed on record it is seen that the Assistant Director, Government of India, Ministry of Corporate Affairs, Chennai had issued summons to the petitioner and others to attend the said office to give evidence and to produce the books of accounts or any other paper in pursuant to the notice dated 17.03.2015. However, the petitioner failed to comply with the same. Thereafter, the respondent, filed a complaint under Section 207(4) of the Companies Act, 2013 against the petitioner and others before the learned Additional Chief Metropolitan Magistrate, chennai to summon and punish them according to law for the default. Thereafter, the respondent has also filed a complaint under Section 149 of the Companies Act against the petitioner and others stating that as per Sub-Section (1) of Section 149 of the Companies Act, 2013, every company shall have a board of Directors consisting of individuals as Directors and shall have (a) a minimum number of three directors in the case of a public company. Two directors in the case of a private company and one director i....
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....m one Tanmoy Dey, for a sum of Rs. 7,800/- towards fee for Form DIR-11 and the same would show that the petitioner had resigned from the company on 05.09.2013 and the same was declared by the petitioner by signing the same digitally only on 05.03.2016, which is only after initiation of the present proceedings, however, Form No.DIR-12 is not found in the material produced and that Form 32 has not been filed by the company. 21. It is also brought to the knowledge of this Court by the learned counsel for the respondent that on earlier occasion, this Court had dismissed the petition, viz., Crl.O.P.No.12391 of 2016, on 12.07.2016, which was filed by Mehool Rasik Parekh, similarly placed person like that of the petitioner and the operative portion is extracted hereunder:- "4. I am unable to countenance the submission, because the provisions under Section 168 of the Companies Act clearly state that a Director shall also forward a copy of his resignation along with the detailed reasons for the resignation to the Registrar within thirty days of resignation in such manner as may be prescribed, which the petitioner has not done. But, the petitioner has sent his resignation to the ROC only ....