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2019 (11) TMI 1153 - HC - Indian LawsDishonor of Cheque - Funds Insufficient and exceeds Arrangement - offence punishable under Section 138 of the Negotiable Instruments Act - 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 also argued that the petitioner is not authorized signatory of the cheques and therefore, the petitioner cannot be prosecuted. HELD THAT:- There is no dispute with regard to judgments 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, it is found that 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, a director of the company, upon resignation, will forward his resignation in Form No.DIR-11 along with fees - A perusal of Form No.DIR-12, relied upon by the petitioner, shows that the declaration was signed by Aparna Puri, existing Director on 23.05.2016 and it was also digitally signed by the Company Secretary Anjum Goyal. Therefore, it is a disputed fact, as on which date, resignation of the petitioner was accepted and therefore, there is no illegality in the findings recorded by the trial Court that it could be an ante-dated information given by the petitioner to escape his liability. The petitioner neither in the application(s) for discharge moved before the trial Court nor in the grounds of petitions taken here, has relied upon any certificate from the office of Registrar of Companies, as to when his resignation was accepted and this information is withheld by the petitioner - There is a specific averment in para No.2 of the complaint that the petitioner was travelling abroad on behalf of accused No.1-company for export of the rice and was attending the offices of accused-company for carrying out its business and thus, he was responsible for day to day conduct and affairs of the company. The petitioner neither in the application(s) for discharge nor in the present petitions has denied the fact that as per statements of account of the accused-company pertaining to the relevant period, the liability towards the complainant(s) is not disputed and at that time, the petitioner was a partner, therefore, the argument, that the petitioner was having 0% share, is not acceptable, as even other partners are shown to be having 0% share and for the internal adjustment of directors, no fault can be found with the complaint(s) filed by the respondent(s). Considering the disputed questions of facts, which need to be proved by leading the defence evidence and also in view of the vague pleadings of the petitioner regarding non-denial/explanation of the various facts in the complaint(s) and the discrepancies in Form No.DIR-12, the Court find no ground to quash the criminal complaint(s) and all other proceedings arising therefrom - Petition dismissed.
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