TMI Blog2023 (5) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... 502/2019 & CRL.M.A. 4505/2019 - - - Dated:- 1-5-2023 - HON'BLE MS. JUSTICE SWARANA KANTA SHARMA For the Petitioner Through: Ms. Aakansha Nehra and Mr. Shalaka Garg, Advocates For the Respondents Through: Ms. Mansoor Ansari, Advocate for R-1. JUDGMENT SWARANA KANTA SHARMA, J. 1. By way of the present petition filed under Section 482 of the Criminal Procedure Code, 1973 read with Article 227 of Constitution of India, 1950, the petitioner seeks quashing of summoning order dated 24.04.2018 passed by learned Metropolitan Magistrate (NI Act)-04, South-East, Saket Court, New Delhi in Criminal Complaint No. 3611/2018 titled as M/s Shivam Shubham Fashions Pvt. Ltd. v. M/s The Aura Creation Exports Private Limited Ors. and all its consequent proceedings, so far as it relates to the petitioner. 2. A perusal of the complaint under Section 138 of Negotiable Instruments Act, 1881 ( NI Act ) reveals that the complainant (respondent no. 1 herein) i.e. M/s Shivam Shubham Fashions Pvt. Ltd. , a Private Limited Company, was having business relations with the accused no. 1 (respondent no. 2 herein) i.e. M/s. Aura Creation Exports Private Limited Ors. , wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had engaged a new counsel and upon so advised, she had started entering appearance in the relevant matters and present case is one such matter. 4. Learned counsel for petitioner states that petitioner had resigned with effect from 25.10.2017 i.e. before the cheques were even allegedly issued, returned and prior to the commencement of subsequent legal proceedings. It is also stated that the cheque in question was issued by the accused company bearing the signature of accused no. 2 (respondent no. 3 herein), and the criminal complaint is bereft of any averments with respect to the involvement of the petitioner in the alleged transaction. Learned counsel for petitioner argues that the petitioner did not have any control nor was she in-charge of the day-to-day affairs of the accused company either when the cheque in question was issued or was dishonored. It is stated that even otherwise, petitioner was never involved in the activities of the financial aspects of the accused company. 5. On the other hand, learned counsel for respondent no. 1 states that petitioner was a director of the accused company, having complete knowledge of the business transactions that used to take pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other liability. 141. Offences by companies. (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter. (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs as well as Promoters of the accused company and the cheque in question was signed by respondent no. 3. The primary contention of the learned counsel for the petitioner was that since petitioner had resigned more than a month prior to even issuance of cheque in question, summons could not have been issued against her in a mechanical manner. To buttress these arguments, a copy of Form DIR-11, copy of Company Master Data as obtained from Ministry of Corporate Affairs (MCA) website, and a few letters have been placed on record. 10. After having gone through the entire material on record, this Court finds that though the Form DIR-11 shows the date of resignation of petitioner as 25.10.2017, it is not a disputed fact that any Director who resigns from a company is himself supposed to update the details about his resignation to the MCA by way of filing Form DIR-11. Even as per the case of petitioner, the details were filed with the Registrar on 24.11.2017, whereas cheque in question was issued only a week later i.e. on 31.11.2017. Furthermore, in the certified copy of Form DIR-11 annexed with the present petition, the name of the document mentions Form DIR-11-05.12.2017_signed , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be exercised very sparingly and where, read as a whole, the factual foundation for the offence has been laid in the complaint, it should not be quashed... **** 47. Our final conclusions may be summarised as under: *** d.) If any Director wants the process to be quashed by filing a petition under Section 482 of the Code on the ground that only a bald averment is made in the complaint and that he/she is really not concerned with the issuance of the cheque, he/she must in order to persuade the High Court to quash the process either furnish some sterling incontrovertible material or acceptable circumstances to substantiate his/her contention. He/she must make out a case that making him/her stand the trial would be an abuse of process of Court. (Emphasis supplied) 13. The issues regarding date of resignation, including as to whether or not or when the resignation letter was actually sent to Board of Directors, or as to when were the details qua resignation updated on the MCA website are all triable issues, especially in view of lack of certain relevant documents as discussed in preceding paras, in the present case. The material placed on record b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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