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2019 (10) TMI 36 - HC - Indian LawsAdmissibility of criminal applications - Dishonor of Cheque - offence punishable under Section 138 r/w 141 of the Negotiable Instruments Act, 1881 - Vicarious Liability of Directors - resignation of directors - section 168 of Companies Act - HELD THAT:- Section 168 would make it abundantly clear that, the Director who wish to resign from his office, he / she has to give notice in writing to the company and the board shall on receipt of such notice, take note of the same and company shall intimate the Registrar in such manner, within such time and in such form as may be prescribed and shall also place fact of such resignation in the report of the directors laid in the immediately following general meeting of the company. In the present case, applicants have placed on record the copies of their letters addressed to the board of directors Hamara Doctor Limited wherein it is stated that, the applicants shall decided to resign from the post of Director from Hamara Doctor Limited with an immediate effect. However, there is no material placed on record to show the further steps taken by the said board of directors as contemplated under Section 168 of the Companies Act - The documents produced by the applicant only reveal that they have informed the Registrar of Companies (ROC) about their resignation and the same has accordingly recorded in the system, however the applicants have not produced form no. 32, which will reveal, whether the resignation of the applicants was accepted by the board of directors on behalf of the company and the company has accordingly informed and updated the Registrar of Companies about it. Therefore, it appears that, without having the approval and recommendation of the board of directors the Form No. DIR – 11 has been accepted by the Registrar of the Companies. There is no denial to the fact that, till date the names of the applicants are being shown as director in the companies record. The documents placed on record by the applicants cannot be considered as uncontroverted or of impeachable character. Since said documents are disputed by respondent contending that, said documents do not fulfill the mandate of Section 168 of the Companies Act - As already observed if the averments in the complaint are read in its entirety an alleged offences are disclosed and therefore, as per settled principle of law the order of issuance of process needs no interference by the learned Magistrate. Criminal applications rejected.
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