TMI Blog2014 (11) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Thus, they were not involved in day to day affairs of the company and no liability can be thus fastened upon them. - CRM-M-No 36249 of 2013 (O&M), CRM-M-No 36401 of 2013 (O&M), CRM-M-No 38057 of 2013 (O&M), CRM-M-No 38206 of 2013 (O&M) - - - Dated:- 13-11-2014 - Ritu Bahri, J. For the Petitioner : Ahswani Kumar Chopra, Sr. Advocate, with Simrith Kaur, Advocate, Rahul Gautam, Advocate For the Respondent : Gaurav Chopra, Advocate JUDGMENT Ritu Bahri, J. This order shall dispose of the above four petitions wherein prayer is for quashing of Criminal Complaint No.20686 of 2013 dated 09.07.2013 and Criminal Complaint No. 20677 of 2013 dated 09.07.2013 and summoning order dated 09.07.2013 passed by learned Judicial Magistrate 1st Class, Ludhiana. In CRM-M-38057 and 38206 of 2013, brief facts of the petition are that the petitioner along with Rajesh Jain and Naveen Kumar Aggarwal were appointed as Director (s) of Company-M/s Miraaya Apparel and Trading Pvt. Ltd.. However, on 16.02.2013, the petitioner-Smriti Thingbaijam tendred resignation from the Board of Directors of the above said Company. The petitioner was residing at Mumbai, Mahrashtra with her famil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. on 09.07.2013 (P-4). The petitioners were served with the summons of the above said criminal complaints on 09.07.2013. Learned counsel for the petitioners are seeking quashing of the complaints dated 09.07.2013 as well as summoning orders dated 09.07.2013 on the ground that before cheque was issued on 27.05.2013, the petitioners who were director of M/s Miraaya Apparel and Trading Pvt. Ltd. have tendered their resignation. Petitioner-Naveen Kumar Aggarwal has tendered his resignation on 21.02.2013, which was duly addressed to Rajesh Jain (one of the Directors) and petitioner-Smriti Thingbaijam has tendered her resignation on 16.02.2013 and the Board of Directors have approved and accepted the resignation of Smriti Thingbaijam on 18.02.2013. Thus, after acceptance of her resignation on 18.02.2013, no offence under Sections 138/141 of Negotiable Instruments Act is made out against the petitioner. On the other hand, Mr. Rahul Gautam contends that once the petitioner-Naresh Aggarwal has tendered his resignation on 21.02.2013, no case under Sections 138/141 of Negotiable Act is made out against him. On notice, a reply has been filed by M/s Dove Creations and M/s A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cheque No. Date Amount 000288 30.01.2013 Rs.14,38,757/- 000289 30.01.2013 Rs.11,62,434/- 000290 30.01.2013 Rs.15,87,041/- At the time of issuance of the above said cheuqes, the petitioners as per their own admission were director of the Company. These cheques were not subject matter of the present complaint but the cheque Nos. 000380 and 000381 dated 27.05.2013 had been issued in continuation of the previous transaction which had resulted in dishonor of the cheques in question. It has further been mentioned in the reply that after dishonor of the cheque, which is subject matter of the present complaint, a statutory notice dated 03.06.2013 was served upon the accused-Smriti Thingbaijam on her complete and correct address. Despite the receipt of the aforementioned notice, the accused failed to make the payment of the cheque amount. Thereafter, the complaint was instituted and the summons were issued to the accused. Thereafter, Rajesh Jain, Director of respondent No. 2 puts a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses to be directors of the Company and the role of the present petitioners would be examined in this background. Learned counsel for the petitioners has referred to a judgment of Hon'ble the Supreme Court in a case of Saroj Kumar Poddar v. State (NCT of Delhi) and anr, 2007 (3) SCC 693, wherein the Director had resigned from the Directorship of the Company before the date of issuance of the cheques and thus, the Supreme Court had held that even if the essential ingredients of Section 138 of N.I Act is made out, it relates principally to the purported offence made by the Company, who had committed the offence. The vicarious liability of the Director who had resigned would not be mace out under Section 141 of N.I Act. In paragraph 16, it has been held as under:- 16. The question came up for consideration before a 3-Judge Bench of this Court in S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and Another [(2005) 8 SCC 89] wherein upon consideration of a large number of decisions this Court opined: 10. While analysing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. The key words which occur in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge of and responsible for the conduct of the business of the company without anything more is not a sufficient or adequate fulfillment of the requirements under Section 141. 15) In a catena of decisions, this Court has held that for making Directors liable for the offences committed by the company under Section 141 of the Act, there must be specific averments against the Directors, showing as to how and in what manner the Directors were responsible for the conduct of the business of the company. Thereafter, Hon'ble the Supreme Court in a case of Harshendra Kumar D. vs. Rebatiata Koley and others, 2011 (3) SCC 351 has held that it is untenable to proceed against the Directors who had resigned prior to offence allegedly committed by Company. While considering the power of the High Court, Hon'ble the Supreme Court in paragraph 25, has observed as under:- 25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day to day affairs of the Company. On this ground also, the appellant is entitled to succeed. In the catena of judgments as discussed above, has laid down that the Director who had resigned and was not involved in day to day functioning of the Company, cannot be summoned to face the trial on the ground of vicarious liability, as per Section 141 of N.I. Act. The judgment cited by learned counsel for the respondent above are not applicable to the facts of the present case as in these case, the Directors who were made liable under Section 141 of N.I Act had not resigned from the Company. Petitioner-Smriti Thingbaijam had resigned from the Company on 16.02.2013 and the Board of Directors have accepted her resignation on 18.02.2013 and petitionerNaveen Kumar Aggarwal had tendered his resignation on 21.02.2013 i.e before the cheque was issued. The Company had informed the Registrar of Societies about the resignation of Smriti Thingbaijam on 16.09.2013, after a gap of 07 months. The argument has been raised by learned counsel for the respondent that why the company had informed the Registrar of Societies after a gap of 07 months about the resignation of petitioner-Smriti Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1986. The receipt of the said resignation is specifically admitted by the respondent and no material has been placed on record by the respondent to show that the same was not accepted or was objected to either by the accused company or by the Registrar of Companies. The complaints are dated July 16, 1993, which goes to show that the same were initiated more than 22 years after the Registrar of Companies had admittedly been communicated the letter of resignation of the petitioner and had accepted the same in terms of its own circular. In the facts of the present case, Petitioner-Smriti Thingbaijam had resigned from the Company on 16.02.2013 and the Board of Directors have accepted her resignation on 18.02.2013 and petitioner-Naveen Kumar Aggarwal had tendered his resignation on 21.02.2013 i.e before the cheque was issued. 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. In the case of Smriti Thingbaijam, the Registrar of Companies was informed about her resignation on 16.09.2013 and in the case of petitioner- Naveen Kumar Aggarwal, the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
