TMI Blog2010 (1) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... company much prior to the date(s) on which cheques in question were presented to the bank for encashment. The petitioners have placed on record certified copies of Form 32 issued by Registrar of Companies, which would show that the petitioner M.L. Gupta had resigned from Directorship on 4th September, 1997, whereas the petitioner Rajiv Gupta resigned on 5th June, 1998. 3. Sanjeev Gupta, who is petitioner in Criminal M.C. No. 1317/2009, Criminal M.C. No. 1318/2009, Criminal M.C. No. 1320/2009 and Criminal M.C. No. 1321/2009, has not filed certified copy of Form 32 though he has placed its photocopy on record. He, however, has placed on record copies of the judgments of this Court in Crl. M. (M). 242 of 1999 titled as Sanjeev Gupta v. The State of Delhi and Anr. , decided by Hon'ble Mr. Justice Dalveer Bhandari, on 11th of July, 20000 and Crl. M.C. 1056/2003 to 1058/2003, titled as Sanjeev Gupta v. The State of Delhi and Anr. , decided by Hon'ble Mr. Justice A.K.Sikri on 23rd of August, 2006. The case of the petitioner Sanjeev Gupta is that he had resigned as a Director of the Company on 25th of September, 1995. This factual position was accepted by this Court in Crl. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made by the Company and not by them in their personal capacity. 6. The learned Counsel for the petitioner has relied to the decision of the Hon'ble Supreme Court in DCM Financial Services Limited v. J.N. Sareen and Anr. 2008 (3) RCR (Criminal) 152. In the case before the Hon'ble Supreme Court post-dated cheques were issued by the Company known as M/s. International Agro Allied Products Limited. The first respondent before the Hon'ble Supreme Court resigned from the Directorship of the Company on 25th of May, 1996. One of the post-dated cheques, which was issued in April, 1995, i.e., before he resigned from the Directorship of the Company, was dated 28.1.1998. The cheque when presented in the Bank for encashment was dishonoured. The payment to the complainant was not made despite issue of Notice of Demand by it. The complaint against the first respondent before the Hon'ble Supreme Court was based on the allegation that he was the person in charge and responsible to the Company at the time when the offence was committed. It was also alleged that the offence had been committed by the Company with the consent and connivance of accused Nos. 2 to 10, which inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they cannot be vicariously liable for the offence committed by the Company, unless it is alleged and shown that even after resigning from directorship, they continued to control the affairs of the company and therefore continued to be persons in charge of and responsible to the company for the conduct of its business. 8. This issue was considered at length by this Court in Shri Raj Chawla v. Securities and Exchange Board of India (SEBI) and Anr. , in Crl. M.C. 3937/09 decided on 12th of January, 2010. Referring to an earlier decision of this Court in Dr. (Mrs.) Sarla Kumar v. Srei International Finance Ltd. 2007 (2) NIJ 208 (Del) and the recent decision of the Hon'ble Supreme Court in K.K. Ahuja v. V.K. Vora and Anr. 2009 (3) JCC (NI) 194, this Court, inter alia held as under: Since the petitioner was not a Director of the company on the date Regulations were framed by SEBI, he cannot be held vicariously liable for violation of those Regulations and the directions, issued to SEBI by M/s Fair Deal Forests Limited. This is not the case of the respondent that the petitioner was Manager, Secretary or a person in accordance with whose directions or instructions, the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of which had not been disputed, it could be considered in proceedings under Section 482 of the Code of Criminal Procedure, this Court also relied upon the decision of the Hon'ble Supreme Court in All Cargo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain and Anr. (2007) 12 SCALE 39, V.Y. Jose and Anr. v. State of Gujarat and Anr. 2009 I AD (Cr.) (S.C.) 567, and Minakshi Bala v. Sudhir Kumar , (1994) 4 SCC 142. I must note here that the authenticity of the certified copies of Form 32 filed by the petitioners has not been disputed by the respondent. This is not the case of the respondent that it had got the record of the Registrar of Companies verified and that these Forms were not issued by his office. 11. In the present cases, the petitioners had resigned from the Directorship of the Company much before cheques in question were presented for encashment. Therefore, they were not in a position to compel the Company to ensure that the cheques when presented to its Bank were honoured. Similarly, they were not in a position to compel the Company to comply with the Notice of Demand by making payment of the amount of the cheques. This is not the case of the respondent that ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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