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Andhra High Court · body

2002 DIGILAW 660 (AP)

Krishna Bhoopal v. K. Venkata Subamma

2002-06-06

C.Y.SOMAYAJULU

body2002
( 1 ) A-3 in C. C. Nos. 639 of 1999 and 641 of 1999 on the file of the court of IV Additional munsif Magistrate, Guntur, filed these petitions to quash those criminal proceedings initiated by the 1st respondent in these petitions (complainant in the above said c. Cs.) under Section 138 of the Negotiable instruments Act (the Act), on the ground that he (petitioner) ceased to be a Director of a-1 company on the date on which the cheques which were dishonoured, were drawn. ( 2 ) ACCORDING to the complaint in both the cases, A-l, of which A-2 and A-3 are Directors, issued cheques drawn on the State Bank of travancore, Hyderabad, which were presented for payment were dishonoured and though statutory notice of dishonour was issued to the three accused they did not either send a reply or pay the amount covered by those cheques which were dishonoured and hence are liable to be punished under section 138 of the Act. ( 3 ) THE contention of the learned counsel for the petitioner is that since the petitioner tendered his resignation as a Director of A-l company as long back as on 6-3-1999 i. e. , long prior to the date of the dishonoured cheques, it is clear that petitioner ceased to be a director of the A-l company even before the cause of action arose and so the proceedings against him are liable to be quashed. He placed strong reliance on the order passed in Criminal Petition No. 2099 of 2001 dated 26-4-2002, where the proceedings against the petitioner in the similar case, were quashed on the ground that he ceased to be the Director of A-l before the date mentioned in the cheque. He contended that since the Certified Copy of Form No. 32 issued by the Registrar of Companies show that petitioner resigned as Director of A-l on 6-3-1999 no further proof that A-l ceased to be a director of A-l from 6-3-1999 is necessary. ( 4 ) IT is no doubt true, as contended by the learned counsel for the petitioner the certified copy of Form No. 32 issued by the Registrar of Companies is a public document and it needs no further proof. ( 4 ) IT is no doubt true, as contended by the learned counsel for the petitioner the certified copy of Form No. 32 issued by the Registrar of Companies is a public document and it needs no further proof. Certified copy of form No. 32 produced by the petitioner shows that intimation of the resignation of petitioner as director from A-l with effect from 6-3-1999, was filed before the Registrar of Companies on 22-11-1999. The complaints in both the cases were filed on 29-7-1999, i. e,, long prior to the sending of intimation to the registrar of Companies. It is to be remembered that prior to the filing of complaint the complainants in the cases issued registered notices informing the petitioner, A-l and A-2 about the cheques issued on behalf of A-l being bounced, and calling upon them to pay the amount covered by. the bounced cheques. It is not even the case of the petitioner that he sent a reply to the notices issued to him. The question as to when the petitioner submitted his resignation as director of A-l company, and when it"came up for consideration before the Board of Directors of A-l and how many directors are there for A-l company after resignation of the petitioner can be known and decided after evidence is adduced in the cases, but not in those petitions. Prima facie it can be seen that intimation about the petitioner tendering his resignation with effect from 6-3-1999 was sent only on 22-11-1999, probably after receipt of summons in the cases. It is well known that till such time as the resignation is accepted it does not come into operation, so when the resignation of petitioner was accepted is a very relevant point in these cases. Therefore, the question as to when the letter of resignation of the petitioner was received in the office of A-l and when his resignation was accepted by the Board of Directors and why there was delay in sending the information to the registrar of Companies about the change in the Board Directors though Section 303 of companies Act contemplates the outer limit within which the change has to be intimated to the Registrar/ and also contemplates a finel being imposed for every day s delay in failing to intimate the change in Directorship, are all matter of evidence to be adduced in the cases. Therefore it is for the petitiorier to establish, to the satisfaction of the trial court that in fact he ceased to be the Director of a-l Company by the date of issuance of cheques, and so he is not liable to be prosecuted. Therefore on the basis of form No. 32 filed by the petitioner the proceedings in the C. Cs. against him cannot be quashed". ( 5 ) THE fact that in another case filed against the petitioner proceedings therein were quashed in Crl. P. No. 2099 of 2001 dated 26-4-2002 is not a ground, in the circumstances stated above, to quash the proceedings against the petitioner. Hence the Petition dismissed.