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2023 DIGILAW 1396 (JHR)

Sharmila Mehta v. State of Jharkhand

2023-11-29

SANJAY KUMAR DWIVEDI

body2023
JUDGMENT : (Sanjay Kumar Dwivedi, J.) : Heard Md. Asghar, the learned counsel appearing on behalf of the petitioners, Mrs. Ruby Pandey, the learned counsel for the respondent State and Mr. Rajendra Krishna, the learned counsel appearing on behalf of the O.P.No.2. 2. Both the cases are arising out of common question of facts and law and the complaint cases have been filed under section 138 of Negotiable Instruments Act and in view of that these petitions have been heard together with consent of the parties. 3. In Cr.M.P. No.2366 of 2013, the prayer is made for quashing of the entire criminal proceeding in Complaint Case No.C/1-3250/2010 so far it relates to the petitioners including the order taking cognizance dated 21.12.2010 whereby the learned court has been pleased to take cognizance under section 138 of the Negotiable Instruments Act, pending in the court of learned Judicial Magistrate, First Class, Jamshedpur. 4. In Cr.M.P. No.2377 of 2013, the prayer is made for quashing of the entire criminal proceeding in connection with C/1-2162/ 2010 so far it relates to the petitioners including the order taking cognizance dated 07.01.2011 whereby learned court has been pleased to take cognizance under section 138 of the Negotiable Instruments Act, pending before the learned Judicial Magistrate, First Class, Jamshedpur. 5. The complaint case which is the subject matter in Cr.M.P. No.2366 of 2013 was lodged alleging therein that the complainant deals in machinery and industrial items and accused persons are its customers and known to it and that accused nos.2 to 5 including the petitioners are directors of the accused no.1 and are involved in day-to-day business of said accused company. It is further alleged that the accused persons purchased machines and other parts from complainant against their purchase order and complainant accordingly supplied the materials to them and against part payment of dues the accused persons issued cheque to the complainant amounting to Rs.2,63,463/- but when the said cheque was presented it was returned by its banker with the endorsement of ‘insufficient fund’ vide return memo dated 12.08.2010 and thereafter the complainant sent legal notice on 25.08.2010 but the accused persons did not pay the amount of cheque to the complainant and in this manner the accused persons have committed offence under section 138 of Negotiable Instruments Act. 6. 6. The complaint case which is the subject matter of Cr.M.P. No.2377 of 2013 was lodged alleging therein that the complainant deals in machinery and industrial items and accused persons are its customers and known to it and that accused nos.2 to 5 including the petitioners are directors of the accused no.1 and are involved in day-to-day business of said accused company. It is further alleged that the accused persons purchased machines and other parts from complainant against their purchase order and complainant accordingly supplied the materials to them and against part payment of dues the accused persons issued cheque to the complainant amounting to Rs.2,63,463/- but when the said cheque was presented it was returned by its banker with the endorsement of ‘insufficient fund’ vide return memo dated 05.06.2010 and thereafter the complainant sent legal notice on 18.06.2010 but the accused persons did not pay the amount of cheque to the complainant and in this manner the accused persons have committed offence under section 138 of Negotiable Instruments Act. 7. Md. Asghar, the learned counsel appearing on behalf of the petitioners submits that the cheque in question was issued on 13.07.2010 and in both the cases the petitioner no.1 is the Director and the petitioner no.2 is not the Director. He submits that the petitioner no.1 has already resigned w.e.f 08.04.2009. He submits that in view of that, the petitioner no.1 in both the cases has been wrongly implicated in the case. He submits that so far as petitioner no.2 is concerned is not the Director. 8. The said argument of Mr. Asghar, the learned counsel appearing on behalf of the petitioners is being resisted by Mr. Rajendra Krishna, the learned counsel appearing on behalf of the O.P.No.2 and he submits that Form 32 has been brought on record by way of filing counter affidavit and he submits that in the Form 32 Soumen Chatterjee is also said to be one of the Director. He submits that in both the cases the resignation date is said to be in the Form 32 as w.e.f 08.04.2009, however, in the resolution of the company is made by resolution dated 16.08.2010. He submits that only to save the skin of the petitioners, the camouflage has been made. He disputes the argument of the learned counsel for the petitioners. 9. It is an admitted position that the cheque in question has been issued. He submits that only to save the skin of the petitioners, the camouflage has been made. He disputes the argument of the learned counsel for the petitioners. 9. It is an admitted position that the cheque in question has been issued. The allegations are made that the petitioners were Director at the time of issuing of the cheque. The cheque is dated 30.07.2010. The Form 32 brought on the record suggest that the resignation made w.e.f 08.04.2009, however, company’s date of resolution is 16.08.2010. How the resolution will be taken later on and whereas in Form 32 Director has already resigned w.e.f 08.04.2009 which creates suspicion. 10. The companies are being governed by their Board of Directors. The directors of the company would retire by rotation and may or may not be re-appointed by the Board under the relevant provisions of the Companies Act. The directors can also resign from the company. There may be change in the management of the company and that change is not private affairs of the company. 11. In view of that the once the directors who have resigned years before the cheque came to be dishonoured, are not liable to be prosecuted and he cannot be said to be in charge of and responsible to the company for the conduct of the business of the company only on the ground that at one point of time he played the role of a director. Reference may be made to the case of “Suhas Bhand Vs. State of Maharashtra & Anr.” 2008 SCC Online 1610 wherein following legal propositions with regard to the resignation of the director emerges:- (i) If the accused in a criminal prosecution under Section 138 of the Negotiable Instruments Act produces a certified copy of Form No. 32 certified by the ROC and there is no dispute of the factum of his resignation, the accused is entitled to be discharged from the prosecution. (ii) If his resignation is not accepted or admitted by the complainant upon production of the certified copy of Form No. 32, the accused would have to prove the truth of the contents of the said certified copy i.e. the factum of his resignation. Such accused cannot be discharged simplicitor upon production of a certified copy of Form No. 32. (ii) If his resignation is not accepted or admitted by the complainant upon production of the certified copy of Form No. 32, the accused would have to prove the truth of the contents of the said certified copy i.e. the factum of his resignation. Such accused cannot be discharged simplicitor upon production of a certified copy of Form No. 32. (iii) If the complainant produces any evidence showing the continuance of the accused as Director of the Company after the date of the resignation claimed by him as per the certified copy of Form No. 32 produced by him, such accused cannot be discharged simplicitor upon production of such certified copy of Form No. 32. He would have to lead evidence to prove the factum of his resignation. Similarly the complainant would be entitled to prove the factum of his continuing as Director. The trial under Section 138 read with Section 141 of the Negotiable Instruments Act would, therefore, proceed. 12. In the present case the resignation of the petitioners have been disputed by the complainant by way of filing counter-affidavit. The cheque was dishonoured on 12.08.2010 and 05.06.2010 wherein the resignation was made on 08.04.2009. In the said Form-32 the appointment is made before issuance of cheque wherein the cheque has been issued much before their resignation. Thus, this is disputed question of facts and not clear-cut admission of resignation and based upon the above this is requirement to prove by way of leading evidence in trial. 13. In view of the above, considering that the said Form 32 is disputed and prima facie it appears that only to save the skin of the petitioners the said resolution has taken on 16.08.2010 and the resignation is said to be w.e.f. 08.04.2009 and that can be only appreciated in the trial. No relief can be extended to the petitioners. 14. Cr.M.P. No.2366 of 2013 and Cr.M.P. No.2377 of 2013 are accordingly dismissed. 15. Pending petition, if any, also stands disposed of accordingly.