ORDER : The three former directors of the Company M/s. Teak Tex Processing Complex Ltd., P.B. No.501, Kanjikode, Palakkad, have filed these petitions to quash the complaint filed by the respondent under various provisions of the Companies Act. 2. In the complaint which is the subject matter of Crl.M.C. No.2560 of 2007, the offence alleged is under Section 217(3) of the Companies Act. According to the complainant, the petitioners failed to furnish Board's report to which the balance sheet of the Company was also to be attached. 3. In the complaint pertaining to which Crl.M.C. No.2565/2007 is filed, the offence alleged is under Section 211(7). Sec.211(1) says that every balance-sheet of a company shall give a true and fair view of the state of affairs of the company as at the end of the financial year. According to the complainant, petitioners are bound to furnish the same but as they failed to furnish the same they are liable to be punished under Section 211(7) of the Act. 4. In the complaint which is the subject matter of Crl.M.C. No.2566 of 2007, it is alleged that the petitioners have violated Section 297 of the Act which provides that approval of the Board of Directors of the Company is required in respect of contracts entered into by the company in which its directors are interested. Further in case of a company having paid up capital of Rs 1 Crore and above previous approval of the Central Government is required in respect of contracts in which directors are interested. It is alleged that in respect of transaction entered into by the Company, the consent of Board of Directors was not obtained and that the approval of the Central Government was also not obtained by the Company. 5. In the complaint which is the subject matter of Crl. M.C. No.2567 of 2007, the offence alleged is under Section 193(1A). It was alleged that during the inspection, the Inspecting Officer found that the proceedings in the Minutes Book of the annual general meeting and the meeting of the Board of Directors were not dated as required under Section 193(1A) of the Act. 6. In the complaint filed in ST. No.11 of 2007 which is the subject matter of Crl.M.C.2568 of 2007, the allegation is that the petitioners did not maintain a register showing the details of contract entered into with the Companies. 6. In the complaint filed in ST. No.11 of 2007 which is the subject matter of Crl.M.C.2568 of 2007, the allegation is that the petitioners did not maintain a register showing the details of contract entered into with the Companies. It is alleged that by not maintaining the register which is required to be maintained under Section 301 of the Companies Act, the Company and its officers have violated the provisions of that Act. 7. In the complaint which is the subject matter of Crl.M.C. No.2569 of 2007 it is alleged that the petitioners have committed the offence under Section 209(3)(b) and Section 211 of the Act. It was stated that during the inspection it was noticed that in the balance sheet of the Company no provision was made for the liability for payment of gratuity to the employees and in the absence of such information the balance-sheet and also profit and loss account cannot be regarded as true disclosure of the state of affairs of the Company and thus the petitioners have committed the offence under that provision. 8. In the complaint, which is the subject matter of Crl.M.C.2570/2007 it is alleged that the petitioners have committed the offence under Sec.211(7) of the Act r/w Schedule VI of that Act. It is alleged that by putting the amount under Suspense Account and by showing non-confirmed amount under Loans and Advances the balance sheet as at 31.3.2003 does not give a true and fair view of the affairs of the company. Thus, according to the complainant, the petitioners, who were the Directors are liable to be punished for the aforesaid offence. 9. In S.T.Case No.12/2007, which is the subject matter of Crl.M.C.No.2571/2007, the allegation is that the petitioners have committed the offence under Sec.285 of the Act. The specific allegation is that the Company had not held any Board meeting after 30.10.2003, which is in violation of Sec.285 of the Act, which mandates that the meeting of the Board of Directors should be held at least once in every three months. 10. In S.T.Case No.7/2007, which is the subject matter of Crl.M.C.No.2574/2007, the allegation is that the petitioners have committed the offences under Sec.217(4) r/w Sec.217(5) of the Act. 10. In S.T.Case No.7/2007, which is the subject matter of Crl.M.C.No.2574/2007, the allegation is that the petitioners have committed the offences under Sec.217(4) r/w Sec.217(5) of the Act. It was alleged that on a perusal of the Balance Sheet of the Company as at 30.10.2003, which was annexed to the Inspection Report, it was observed that the Balance Sheet was not signed by the persons as required under Sec.217(4) of the Act. 11. Learned counsel for the petitioners submits that petitioners 2 and 3 resigned from the directorship of the company on 11.8.2000 and the first petitioner resigned from the directorship from 16.8.2000. It is also submitted by the learned counsel that the resignation was forwarded to the Company and it was accepted by the Company. But the learned counsel for the respondent would submit that the factum of acceptance of resignation was not intimated to the Registrar of Companies in Form No.32 and as such, it cannot be said that the petitioners were not the Directors of the Company and hence, they cannot wriggle out of the liability. In this connection, the learned counsel for the petitioners has relied upon Annexure A5 order passed by this Court in Co. Appl. Nos.227, 228 and 229 of 2006 in C.P.No.28/2005. Referring to the relevant portion of Annexure A5 order, the learned counsel for the petitioners submits that in the Articles of Association of the Company in this case - M/s.Teak Tex Processing Complex Ltd., there was no provision which mandates the formal acceptance of the resignations submitted by the Directors. The fact that the petitioners had submitted their resignations on the dates mentioned above were not in dispute. There was also no case for the Company that the resignations were not accepted nor was there any case that, for the alleged non-acceptance of the resignation, the resignation had not taken effect. It is pointed out by the learned counsel that as per the relevant provisions of the Companies Act, in respect of which violations are alleged by the respondent, the obligation was of the directors as on the date when the returns were to be submitted or the balance sheet were to be furnished. In other words, according to the learned counsel, the provision does not mandate that the directors who had submitted their resignations are bound to furnish returns, balance sheet etc. 12. In other words, according to the learned counsel, the provision does not mandate that the directors who had submitted their resignations are bound to furnish returns, balance sheet etc. 12. Sec.303(2) of the Act reads : “(2) The company shall, within the periods respectively mentioned in this sub-section, send to the Registrar [a return in duplicate in the prescribed form] containing the particulars specified in the said register and [a notification in duplicate in the prescribed form] of any change among its directors managing directors, managers or secretaries, specifying the date of the change. The period within which the said return is to be sent shall be a period of [thirty] days from the appointment of the first directors of the company and the period within which the said notification of a change is to be sent shall be [thirty] days from the happening thereof;” Similarly, Sec.454(2) of the Act also is relevant in this connection which reads : “(2) The statement shall be submitted and verified by one or more of the persons who are at the relevant date the directors and by the person who is at that date the manager, secretary or other chief officer of the company, or by such of the persons hereinafter in this sub-section mentioned, as the Official Liquidator, subject to the direction of the [Tribunal], may require to submit and verify the statement, that is to say, persons - (a) who are or have been officers of the company; (b) who have taken part in the formation of the company at any time within one year before the relevant date; (c) who are in the employment of the company, or have been in the employment of the company within the said year, and are, in the opinion of the Official Liquidator, capable of giving the information required; (d) who are or have been within the said year officers of, or in the employment of, a company which is, or within the said year was, an officer of the company to which the statement relates.” On going through these provisions, there can be no doubt that the liability is upon the persons who are at the relevant date the Directors. The words “is” and “are” employed in the aforesaid Section indicate only the present tense; that the obligation is upon persons who “are” the Directors. The words “is” and “are” employed in the aforesaid Section indicate only the present tense; that the obligation is upon persons who “are” the Directors. The Company is bound to submit the required information regarding the resignation. But, that duty is cast only upon the Company. Though the duty is on the Company, it has to be carried out through its Secretary. True, the Directors also can furnish the required information to the Registrar of Companies, but the primary duty is upon the Company and that has to be done by the Secretary of the Company. For the omission on the part of the Secretary, the Directors who had already resigned from the Company, that too about more than 2 years prior to the date of the alleged violations noticed by the Inspector, the petitioners cannot be held liable, the learned counsel for the petitioners submits. 13. It is contended by the petitioners that since necessary Form No.32 regarding the resignation was not filed by the Company, the petitioners received notice from the Registrar of Companies relating to violation of certain provisions under the Companies Act. Immediately they sent a lawyer notice calling upon the Company to file Form No.32 intimating the factum of acceptance of resignation submitted by the petitioners. Since even after the registered lawyer notice sent to the Company, the Company failed to comply with the petitioner's request, they filed company petition - C.P.No.840/2005 before the Company Law Board, Chennai. While that petition was pending, this Court by order dated 8.12.2005, wound up the Company and so, the petition filed by the petitioners before the Company Law Board was withdrawn by the petitioners. 14. Learned counsel for the respondent submits that nothing was mentioned in the order passed by the Company Law Board that it was dismissed because of the winding up of the Company. The order passed by the Company Law Board shows that the petition was dismissed as withdrawn. But, however, the circumstances pointed out above cannot be lost sight of. 15. Learned counsel for the respondent submits that nothing was mentioned in the order passed by the Company Law Board that it was dismissed because of the winding up of the Company. The order passed by the Company Law Board shows that the petition was dismissed as withdrawn. But, however, the circumstances pointed out above cannot be lost sight of. 15. In the petition filed before this Court, pursuant to which Annexure-A5 order was passed, this Court noticed the distinction between two classes of persons coming under S.454(2) namely; persons who are at the relevant date Director, Manager, Secretary or other Chief Officer of the Company and other persons who are mentioned in clauses (a) to (d) of sub-section (2) of S.454 as persons who can be required by the Official Liquidator to submit and verify the statements. The argument advanced by the learned counsel for the petitioners was that a Director who submitted his resignation should be deemed to have resigned from his office from the date of submission of his resignation, as his intention to resign is unequivocally expressed either orally or by a letter. In support of that submission, the decisions in S.S. Lakshmana Pillai v. Registrar of Companies ((1977) 47 Comp. Cases 652) and T.Murali v. State ((1976) 46 Comp. Cases 613) were relied upon by the learned counsel. If there is nothing in the Articles of Association providing for formal acceptance of resignation, then, once a Director tendered his resignation, it must be deemed to have been accepted. It was also observed by this Court in Annexure A5 : “In the instant case also I find from the Articles of Association that there is no provision for any formal acceptance of resignation of Directors by the Board of Directors. To this extent the above decision of the Madras High Court also support the argument of the learned counsel for the applicants. The principles laid down by the Madras High Court in the aforesaid two decisions and the general principles emerging from the other decisions cited at the Bar by the learned counsel for the applicants in my opinion will justify the grant of these applications. The fact that the applicants have tendered their resignations and had disassociated themselves from the business of the Company in liquidation with effect from the date of their resignation is not in dispute cannot be ignored.” 16. The fact that the applicants have tendered their resignations and had disassociated themselves from the business of the Company in liquidation with effect from the date of their resignation is not in dispute cannot be ignored.” 16. In the light of the finding entered by this Court in Annexure A5, the learned counsel for the petitioners submits that it must be held that the petitioners had disassociated themselves from the business of the Company ever since they submitted their resignation in August 2000 as referred to earlier and as such, for the violations of non-compliance noticed in 2003, the criminal liability cannot be saddled upon the petitioners. 17. Learned counsel for the respondent submits that Annexure A5 order was passed without notice to the respondent and as such, it cannot be said that the prosecution initiated against the petitioners cannot be sustained. It is further submitted that if at all, those are matters to be agitated at the time of trial. Since it is not disputed that Form No.32 was not submitted, the petitioners cannot escape from the liability and that, if at all, it is only a matter to be proved at the time of trial; as to whether the resignation was accepted by the Company or whether the petitioners continued to be the Directors even as on the relevant date, namely; 2003, the learned counsel for the respondent submits. 18. But, this submission cannot be sustained at all, the learned counsel for the petitioners submits. The decision in Saumil Dilip Mehta v. State of Maharashtra and others (AIR 2002 Bombay 194) has been relied upon by the petitioners. That was a case where the revenue recovery proceedings were initiated for recovery of the amount due and payable by the Company for the years 1992-1993 to 1998-1999. The petitioner therein contended that he resigned from the post of Director of that Company prior to 3.1.1995 and that was made clear by his letter dated 3.1.1995 which was addressed to the Chairman of that Company. It was argued that since the petitioner therein had already resigned from the post of Director of the said Company, the Recovering Authority was not entitled to attach his personal private property which had no connection with the assets of the Company. It was argued that since the petitioner therein had already resigned from the post of Director of the said Company, the Recovering Authority was not entitled to attach his personal private property which had no connection with the assets of the Company. The main argument advanced by the respondent therein was that the resignation was not tendered by the petitioner by filling in Form 32 and it was not so tendered as required under Sec.303(2) of the Act. It was also contended that since no legal steps were taken and the resignation was not tendered legally, the petitioner therein cannot seek the protection of the court in getting the proceedings quashed. The question considered in that case was whether a director of a public or private limited company can resign unilaterally and that too by writing a letter to the chairman of the said company or its secretary and whether it is necessary for such a director to fill up Form No.32 and is obliged to give a notice or intimation to that effect to the Registrar of Companies. The other question was whether that particular director was obliged to give such information to the Registrar of Companies and whether he cannot retire without complying with the said requirements. It was held that the director of a public limited company or private limited company can tender his resignation unilaterally and without filling in Form 32 and without sending a notice to the Registrar of Companies. It was further held that filling in of the said Form and giving intimation and information to the Registrar of Companies is the duty of the Company Secretary and not of an individual director. It was held : “It is clear that the filling in the said form and giving due intimation and information to the Registrar of Companies is the duty of the Company Secretary and not of an individual director. Suffice it to say that what he has to do is to send in writing a letter informing either the Chairman or the Secretary of the Company, as the case may be, his intention to resign from the post of the Director of the said company. Suffice it to say that what he has to do is to send in writing a letter informing either the Chairman or the Secretary of the Company, as the case may be, his intention to resign from the post of the Director of the said company. Thereafter the said letter has to be moved in the meeting of the directors of the company, may be ordinary meeting or may be extra-ordinary or special meeting, as the case may be, and the Board of Directors have to take a decision whether the Board is accepting his resignation or not. An intimation should be sent to such director and after such resolution is passed, the Company Secretary is under the obligation to comply with the legal formalities for giving a finishing touch to the resolution which has been passed in the said meeting of the Board of Directors. It is for the Company Secretary to fill in the forms as prescribed and to give due information and intimation to the Registrar of Companies, as the law requires.” It was also held : “When a director has tendered his resignation and the Board of Directors has accepted it and has acted on it, such director cannot be held liable for the liability incurred by the said company after the date of acceptance of his resignation except the liability which has been incurred by him for purchase of shares of the said company and nothing more.” 19. Learned counsel for the petitioners submits that the facts of the case dealt with in the decision cited supra are identical to the facts of the case on hand. In the light of the judgment of this Court in Annexure A5, there can be no doubt to hold that the petitioners retired from the directorship of the Company on 11.8.2000 and 16.8.2000 respectively and the resignation letters were submitted by them to the Company. It was not a case developed or thought of by them subsequently after the initiation of these proceedings. On going through Annexure A5, it is clear that the contention raised by the petitioners that they had submitted their resignations to the Company is true. It was not a case developed or thought of by them subsequently after the initiation of these proceedings. On going through Annexure A5, it is clear that the contention raised by the petitioners that they had submitted their resignations to the Company is true. Since it was the duty of the Secretary of the Company to fill up Form No.32 and to submit the same to the Registrar of Companies, the petitioners cannot be found fault with or saddled with the criminal liability for not submitting Form No.32. Since the resignations were not rejected or returned, they must be deemed to have come into effect in the year 2000 itself. If so, the prosecution initiated against the petitioners for the non-filing of returns or for any of the violations pertaining to the year 2003 and made mention of in the Inspection Report cannot be sustained. 20. In view of the finding entered by this Court in Annexure A5, on the reason of non-filing of Form No.32 by the Company which had to be done by the Secretary of the Company, it cannot be said that the resignations had not come into effect nor can it be said that the petitioners continued to be the Directors in 2003 also so as to fasten the criminal liability on them. 21. Learned counsel for the respondent has relied upon the order passed by this Court in Crl.M.C.No.2512/2001 dated 25.9.2003 in support of the submission that the proceedings initiated by the respondent cannot be quashed. But, the facts dealt with therein are not identical. In that case, there was no acceptable evidence to show that the resignation was in fact submitted and accepted by the Board. There was no sufficient material in that case to hold that Annexure B resignation was submitted by the petitioner. It was found that it was a matter for evidence. Hence, the request to quash the proceeding was turned down. But in the case on hand, it is not in dispute that the resignations were in fact submitted. The fact that the petitioners had moved the Company Law Board long prior to the institution of these complaints would make it clear that the resignations were duly submitted to the Company. The Company had no case that the resignations were not accepted. The fact that the petitioners had moved the Company Law Board long prior to the institution of these complaints would make it clear that the resignations were duly submitted to the Company. The Company had no case that the resignations were not accepted. In the light of what has been stated above, I hold that the prosecution initiated against the petitioners cannot be sustained and as such, these petitions are to be allowed. Hence, these Crl.M.Cs are allowed. Further proceedings against these petitioners in S.T.Case Nos.14/2007, 8/2007, 13/2007, 9/2007, 11/2007, 15/2007, 10/2007, 12/2007 and 7/2007 pending before Addl. Chief Judicial Magistrate (Economic Offences), Ernakulam are quashed.