JUDGMENT D.G. Deshpande, J.
1. This is a group of 23 criminal revision applications along with 23 criminal writ petitions. Out of these 23 criminal revision applications, ten have been filed by the learned advocate Mr. G. K. Tamba, three have been filed by the learned senior advocate Mr. V. B. Nadkarni, eight have been filed by the learned advocate Mr. J. P. Mulgaokar and two have been filed by the learned advocate Mr. Kholkar. All the 23 criminal revision applications have been filed by the original complainant against the order of the Sessions Judge by which the order of issue of process issued against the accused Suresh Prabhakar Prabhu was quashed and set aside. All the criminal writ petitions have been filed by the accused Suresh P. Prabhu challenging certain observations and findings of the Sessions Judge in the same order, even though ultimately the Order of the Sessions Judge was in his favour.
2. I heard learned advocate Mr. G. K. Tamba in respect of his ten criminal revision applications, Mr. Nadkarni, learned senior advocate, in respect of his three criminal revision applications, learned advocate Mr. J. P. Mulgaokar, in respect of his eight criminal revision applications and learned advocate Mr. Kholkar, in respect of his two criminal revision applications. So far as the criminal revision applications of Mr. Tamba are concerned, reply to the same was given by Mr. Shirish Gupte, learned senior advocate and so far as the criminal revision applications of Mr. Nadkarni and others are concerned, the reply was given by Mr. Amit Dessai, on behalf of the accused Suresh P. Prabhu. Similarly, in the criminal writ petitions arguments were advanced by Mr. Amit Dessai, on behalf of the petitioners and all the advocates appearing for the complainants in their respective criminal revision applications gave reply to those submissions.
3. All the 23 criminal revision applications arise out of 23 complaint cases filed by the respective complainants before the Judicial Magistrate First Class under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "said Act"). In all those complaints, the allegations of the complainants were that Western India Financial Services Ltd. (hereinafter for brevity's sake referred to as "the company"), of whom accused Suresh P. Prabhu was the managing director, lured people to make investments in their company, with promise of high returns and they also gave cheques to the investors. However, when the cheques were deposited by the investors in their respective banks, all the cheques bounced. Notices were given by the complainants to the company and in some cases also to the accused Suresh P. Prabhu, but since the payment did not follow those notices, the complaints were filed under the Act and also in some cases by invoking Section 420 of the Indian Penal Code, 1860.
4. The Judicial Magistrate First Class, Panaji, after recording the verification statements of the respective complainants, issued process against the company as well as against accused Suresh P. Prabhu. After putting in his appearance the accused Suresh P. Prabhu filed an application for recalling of the process issued against him. The complainants gave replies to that application, to which the accused Suresh P. Prabhu also filed rejoinder. Thereafter, the matter was heard by the Judicial Magistrate First Class on the point of recalling of process.
5. On August 29, 1998, the Judicial Magistrate First Class rejected the application of the accused Suresh P. Prabhu for recalling of process. Consequently, the accused Suresh P. Prabhu preferred 23 revision applications before the learned Sessions Judge, North Goa, at Panaji, and all those revision applications were separately numbered. However, since the submissions before the learned Sessions Judge were the same in all those matters, the learned Sessions Judge passed a common order in all those 23 revision applications and allowed the applications and quashed and set aside the impugned order against Suresh P. Prabhu. Consequently, the process issued under Section 138 of the Act and Section 420 of the Indian Penal Code against Suresh P. Prabhu stood rescinded and all the complaints were dismissed as against Suresh P. Prabhu only.
6. It is against this order that all the 23 complainants have filed these 23 criminal revision applications and since the learned Sessions Judge had made certain observations and given certain findings against the accused Suresh P. Prabhu in his aforesaid judgment, i.e., the impugned judgment, the accused Suresh P. Prabhu filed 23 separate criminal writ petitions so that findings against him should not go unchallenged and the complainants/revision petitioners before this court, should not advance an argument that since the findings have not been challenged by him they should be held as against him while deciding the criminal revision applications.
7. I heard learned advocates for the complainants at length and so also the learned advocate for the accused Suresh P. Prabhu, as stated above, group-wise, as well as advocates in the criminal writ petitions.
8. The ground taken by the accused Suresh P. Prabhu before the Judicial Magistrate First Class while claiming recalling of the process was that all the cheques issued by the company were subsequent to his resignation dated May 6, 1996, and since he has ceased to be a director of the said company from May 6, 1996, he could not be said to be in the management of the company, or in charge of the day-to-day affairs of the company and, therefore, he could not be roped in in the complaint filed by the complainants. The accused Suresh P. Prabhu further contended that he was elected as a Member of Parliament in the general elections held for the Lok Sabha in 1996. He, therefore, tendered his resignation as director of the company on May 6, 1996. His resignation was accepted on May 7, 1996, and therefore, on the date of the accrual of the cause of action in all the complaints he had no concern with the transaction, neither the issuance of the cheques and, therefore, the process issued against him was liable to be recalled.
9. In the reply filed by the complainants, (even though generally), the facts are identical, I am reproducing the facts in Criminal Revision Application No. 13 of 1999, wherein the original criminal case was number 16/OA/97/D) to the application of the accused Suresh P. Prabhu for recalling of process, the complainant firstly contended that as per the official authentic record maintained by the Registrar of Companies, the accused Suresh P. Prabhu resigned as director of the company only on March 15, 1997. They placed reliance on the xerox certified copy of Form No. 32, issued on March 26, 1997, filed by the company with the Registrar of Companies and since according to the complainants the resignation was subsequent to the cause of action, the accused Suresh P, Prabhu could not claim that he was in the management and control of the company or that he was not in charge of the day-to-day affairs of the company.
10. The Judicial Magistrate First Class rejected the contention of the accused Suresh P. Prabhu. The Magistrate while rejecting the said contention held that even though according to the accused Suresh P. Prabhu he had resigned on May 7, 1996, xerox certified copy of Form No. 32 issued by the Registrar of Companies showed that he resigned from March 15, 1997. There was, therefore a dispute as to the exact date when the accused Suresh P. Prabhu resigned and since this dispute could be resolved only after a full-fledged trial and not at the interim stage, the parties were required to face the trial. The magistrate also rejected the contention of the learned advocate, Mr. Vahanvati, on behalf of the accused Suresh P. Prabhu that the resignation becomes effective from the date on which it is tendered, i.e. May 6, 1996.
11. When the matter went before the Sessions Court, the Sessions Court quashed the issue of process on the ground that in all the 23 complaints there were no allegations that the accused Suresh P. Prabhu was in charge of the management of the company or in charge of the day-to-day affairs of the company. The learned Sessions Judge also found that summoning an accused in a criminal case is a serious matter, on the basis of the judgment of the Supreme Court in the case of Pepsi foods Ltd, v. Special Judicial Magistrate [1997] 8 JT 705 ; AIR 1998 SC 128 and since the magistrate has not carefully scrutinised the documents brought before him and not tried to ascertain the truthfulness of the allegations, the order of recalling process was liable to be set aside because in none of the complaints there were allegations sufficient to fulfil the requirements of Section 141 of the said Act. However, according to all the advocates for the complainant arguing before me the aforesaid ground on which the learned Sessions Judge allowed the revisions of the accused Suresh P. Prabhu was not at all taken by the accused Suresh P. Prabhu anywhere in his memo of revision, nor was it taken before the lower court. The learned Sessions Judge however, rejected the contention of the accused Suresh P. Prabhu that he resigned on May 6, 1996, and that his resignation was effective from the date when it was tendered. The learned Sessions Judge accepted the argument of learned senior advocate Mr. Nadkarni, that process issued could be recalled only on the basis of reconsideration of the complaint and not on the basis of the document produced on behalf of the accused. The learned Sessions Judge held that the observations of the Supreme Court in the case of Satish Mehra v. Delhi Administration , did not apply to the facts of the case before him. The learned Sessions Judge also observed that the question of the resignation of the accused Suresh P. Prabhu on May 6, 1996, or on the March 15, 1997, as alleged by the complainants, was a matter of fact which was required to be proved at the trial. It is these observations of the learned Sessions Judge which are challenged by the accused Suresh P. Prabhu in all his 23 criminal writ petitions.
12. Since the learned Sessions Judge allowed the revisions filed by the accused Suresh P. Prabhu on the ground that in none of the complaints the requirements of Section 141 of the Act were complied with, the learned advocates for the revision petitioners/complainants argument before me is that these observations were factually incorrect. So far as the criminal revision applications filed by Mr. Nadkarni are concerned, he contended that in his three criminal revision Applications Nos. 27 of 1998, 28 of 1999 and 29 of 1999, there were sufficient allegations to meet the requirement of Section 141 of the Act, but since the learned Sessions Judge passed one common order, he did it without actually ascertaining those facts from the respective complaints.
13. So far as the criminal revision applications filed by the learned advocate, Mr. Tamba are concerned, he contended that in all his complaints the accused Suresh P. Prabhu was the only other accused apart from the company and he was shown in the complaints as managing director of the company and, as such, it was not necessary for the complainants to specifically aver and plead that he was in charge of the management and the day-to-day affairs of the company. According to Mr. Tamba, the very fact that the accused Suresh P. Prabhu was the managing director was sufficient to hold that he was in charge of the management of the company. So far as the criminal revision applications filed by Mr. Mulgaokar and the two criminal revision applications filed by Mr. Kholkar are concerned, they also adopt the arguments of Mr. Tamba on the basis of their complaints before the magistrate. Factually, in the complaints or complainants represented by the learned advocate Mr. Kholkar, vide Criminal Cases Nos. 7 and 6 of 1997, the accused Suresh P. Prabhu is shown as chairman-cum-managing director of accused No. 1-company, whereas in the complaints filed by the learned advocate Mr. Mulgaokar, vide Criminal Cases Nos. 29/OA/97/C, 23/OA/97/C, OA/28/97/B, 24/OA/97/D, 27/ OA/97/A, 22/OA/97/D, 25/OA/97/C and 30/OA/97/D, the accused Suresh P. Prabhu is shown in the title as, "formerly chairman-cum-managing director". So far as this controversy is concerned, it will be necessary to reproduce Section 141 of the Act, which reads :
"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.
(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 has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
Explanation.--For the purposes of this section,--
(a) 'company' means any body corporate and includes a firm or other association of individuals ; and
(b) 'director', in relation to a firm, means a partner in the firm."
14. If the person committing an offence under Section 138 of the Act is a company, every person who, at the time the office was committed was in charge of or 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 prosecuted against and punished accordingly. So far as the complaints filed by the complainants represented by Mr. Nadkarni are concerned, (Criminal Revision Application No. 28 of 1999 arising out of Criminal Case No. 28/97/B) in para. 1 of the complaint, it is alleged by the complainant that accused No. 2 (accused Suresh P. Prabhu), accused Nos. 3 and 4 are its chairman and managing director and director, respectively. However, in para. 7 of the complaint, the complainant has alleged that accused Nos. 2, 3 and 4 as chairman and managing director/directors were in charge of and were responsible for the conduct of the business of the company. Accordingly, accused Nos. 2, 3 and 4 are also liable along with accused No. 1 for the aforesaid offence. (Accused No. 1 is the company Western Indian Financial Services Ltd.).
15. It will be, therefore, clear that so far as the three complainants represented by Mr. Nadkarni are concerned, there are allegations against the accused Suresh P. Prabhu firstly that he was the chairman and managing director, and secondly, that he was in charge and was responsible for the conduct of the business of the company. Looking to the provisions of Section 141 of the said Act reproduced above and the aforesaid allegations in the complaint, it has to be held that the allegations were sufficient in the complaint and the learned Sessions Judge committed a mistake of fact in concluding that no allegations were there in this regard, i.e., with reference to Section 141 of the said Act in the complaints filed by the complainants represented by Mr. Nadkarni.
16. So far as the complaints filed by the complainants represented by Mr. Tamba are concerned, it was contended by Mr. Tamba as stated above, that in all those complaints the complainants had joined accused Suresh P. Prabhu as accused No. 2 in his capacity as chairman-cum-managing director of the company and in para. 9 of those complaints, for example in complaint Criminal Case No. 16 of 1997, it was alleged that it was during the tenure of accused No. 2, who then represented accused No. 1-company, as its chairman-cum-managing director. Mr. Tamba therefore contended that if the accused Suresh P. Prabhu was the chairman-cum-managing director and which fact is not denied or disputed by the accused Suresh P. Prabhu, then it was not necessary for the complainant to specifically allege in the complaint that the accused Suresh P. Prabhu was, at the time of the offence in charge of and responsible to the company for the conduct of the business of the company. According to Mr. Tamba, a managing director by virtue of the office he holds and the nomenclature given to him under the Companies Act, is a person entrusted with the conduct of the business of the company and was in charge of the affairs of the company and responsible to the company. Mr. Tamba drew my attention to the definition of the words, "managing director" in Section 2, Sub-section (26) of the Companies Act, which is reproduced as under :
"(26) 'managing director' means a director who, by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its board of directors or, by virtue of its memorandum or articles of association, is entrusted with substantial powers of management which would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name called :
Provided that the power to do administrative acts of a routine nature when so authorised by the board such as the power to affix the common seal of the company to any document or to draw and endorse any cheque on the account of the company in any bank or to draw and endorse any negotiable instrument or to sign any certificate of share or to direct registration of transfer of any share, shall not be deemed to be included within substantial powers of management :
Provided further that a managing director of a company shall exercise his powers subject to the superintendence, control and direction of its board of directors."
17. He, therefore, contended that the definition being explicitly clear, was sufficient for arraying the accused Suresh P. Prabhu as managing director in the complaints and there was necessary compliance with the provisions of Section 141 of the said Act and those complaints could not be dismissed. The same is the case with the complaints or complainants represented by the learned advocate Mr. Kholkar, because in his complaints, Criminal Cases Nos. 7 and 6 of 1997, respectively, he has also shown the accused Suresh P. Prabhu as chairman-cum-managing director.
18. Mr. Gupte and/or Mr. Dessai appearing for the accused Suresh P. Prabhu however, contended that merely because the accused Suresh P. Prabhu was the managing director and chairman of the company that will not absolve the complainants from specifically alleging in the complaints that the accused Suresh P. Prabhu was in charge of and responsible to the company for the conduct of the business of the company.
19. In fact, the proviso to Sub-section (26) of Section 2 of the Companies Act, i.e., the sub-section defining "managing director", makes it abundantly clear that the power to do administrative acts of routine nature when so authorised by the board, as well as power to affix any seal of the company to any document or draw and endorse any cheque on the account of the company in any bank . . . shall not be taken to be included within the substantial powers of management. It means that as per this proviso, a person exercising powers under the proviso may be different from the managing director. However, since no submission was made in this regard, i.e., with reference to the proviso to Section 2, Sub-section (26) by either Mr. Gupte or Mr. Dessai, the effect of the proviso cannot be taken into consideration. The result is that when the words "managing director" is defined in Sub-section (26) of Section 2 of the Companies Act as a director entrusted with substantial powers of management, then it cannot be said that joining the accused Suresh P. Prabhu in the complaints (as represented by learned advocate Mr. Tamba) in his capacity as managing director and chairman, is not sufficient compliance with Section 141 of the Act and, therefore, the learned Sessions Judge also erred in holding that the complaints were liable to be dismissed in the absence of particulars, or for non-compliance with the provisions of Section 141 of the said Act. The result in the above said finding is that the order of the learned Sessions Judge in so far as it relates to dismissal of the complaint and recall of the process on the ground of non-compliance with the provisions of Section 141 of the said Act has to be set aside. This reasoning will also apply to the two complaints, i.e., Criminal Cases Nos. 7 and 6 of 1997, in which the complainants are represented by learned advocate Mr. Kholkar, wherein accused Suresh P. Prabhu is referred to and shown as chairman-cum-managing director.
20. However, the above finding cannot automatically decide the fate of these matters before this court, because the learned advocates for the complainants as well as the learned advocates representing the accused Suresh P. Prabhu strenuously urged the other point, namely the resignation of the accused Suresh P. Prabhu and its effect on the proceedings.
21. The advocates representing the complainants strongly urged that firstly whether the accused Suresh P. Prabhu resigned on May 6, 1996, is a disputed question of fact. The letter of resignation dated May 6, 1996, of the accused Suresh P. Prabhu being not admitted by any of the complainants, they also question the fact of resignation as well as the letter of resignation and according to them in any case the accused Suresh P. Prabhu resigned on March 15, 1997, as is disclosed by the certified copy, i.e., the certified xerox copy of Form No. 32 filed at exhibit A (annexure H) of Criminal Revision Application No. 13 of 1999, i.e., the criminal revision application filed by the learned advocate Mr. Tamba. They, therefore, contended that when exhibit A (annexure H) certified xerox copy of Form No. 32 is an authenticated public document and when such a document shows March 15, 1997, as the date of resignation of the accused Suresh P. Prabhu then, the same date has to be accepted in preference to the resignation letter of the accused Suresh P. Prabhu, upon which reliance was strongly placed by the accused Suresh P. Prabhu. They have also denied the date of election of the accused Suresh P. Prabhu to the Lok Sabha, the result of the election, his subsequently being taken as cabinet minister and his contention that he could not hold an office of profit and for that reason he resigned from the directorship of the company with which he was connected. They also criticised all the documents relied upon by the accused Suresh P. Prabhu in support of his contention.
22. On the other hand, Mr. Dessai and Mr. Gupte, contended that firstly the accused Suresh P. Prabhu had resigned from May 6, 1996. Secondly, there is no provision in the Companies Act about the resignation of a director and, therefore, this aspect has to be considered with reference to the articles of association of the company and since the articles of association of the company provided for tendering resignation and its immediate effect of a person ceasing to be a director without the rhetorics of its acceptance by the board of directors, the accused Suresh Prabhu ceased to have any concern in the company and was not at all in charge of the management of the company or its day-to-day affairs nor was responsible to the company.
23. Thirdly, according to them No. 32 at exhibit A (annexure H) referred to above was relied upon by the complainants and the date given therein as March 15, 1997, could not be considered as the date of resignation in any circumstances. Therefore the complainants (out of the complainants before this court), who had given notice to the accused Suresh P. Prabhu, after dishonour of the cheques, as required under Section 138 of the said Act, were informed by the accused Suresh P. Prabhu, by a reply to the notice that he had resigned as director on and from May 6, 1996, and since this stand is taken by the accused Suresh P. Prabhu, immediately on receipt of the notice, the letter of resignation produced before him by the magistrate is consistent with the said stand and it could not be said to be a fabricated or forged document or an afterthought. Further, it was contended by the advocates for the accused Suresh P. Prabhu that the company by its letter or circular dated January 2, 1997, which is annexure F in Criminal Revision Application No. 13 of 1999, had informed all the investors including all the complainants, that the accused Suresh P. Prabhu has resigned from the company on May 6, 1996, after getting involved in the political field. Therefore, all the complainants were aware of the resignation even before any cheques were issued to them or before they filed the complaints before the Judicial Magistrate First Class. In addition, Mr. Gupte and Mr. Dessai contended that the company was taken over by another management immediately after the resignation of the accused Suresh P. Pra-bhu and this change in the management and names of new directors was informed to the Registrar of Companies in Form No. 29 on November 14, 1996, or Form No. 32 and all these documents were tendered before the Judicial Magistrate First Class and there was no reason to disregard or disbelieve those documents.
24. Mr. Gupte and Mr. Dessai further contended that whether the accused Suresh P. Prabhu has tendered his resignation or not could not be said to be a disputed question in the facts and circumstances of the case and, consequently, it was required to be held that the accused Suresh P. Prabhu ceased to have any kind of concern with the company from the date of his resignation since its acceptance comes under the articles of association of the company and under the different rulings of the courts and particularly of a judgment delivered by Justice Lodha in the case of Dushyant D. Anjaria v. Wall Street Finance Ltd. [2001] 105 Comp Cas 655 (Bom) ; [2001] All. M. R. (Crl.) 62. The resignation becomes effective as soon as it is tendered and, therefore, the accused Suresh P. Prabhu was liable to be exonerated from the complaint in the sense that the process issued against him was liable to be recalled on that ground alone and the findings of the learned Sessions Judge against the accused Suresh P. Prabhu in that regard were liable to be quashed and set aside.
25. However, the advocates for the complainants, Mr. Nadkarni, Mr. Tamba, Mr. Mulgaokar and Mr. Kholkar, contended that none of the documents relied upon by the accused Suresh P. Prabhu, about his resignation, before the trial court or before the Sessions Court or before this court could be taken into consideration because firstly the complainants were disputing them, secondly, the proof of those documents was required to be tendered before the trial court, and thirdly, the complainants were not accepting those documents as genuine. They also contended that where the issue of process is challenged, the question was required to be decided only on the basis of the allegations made in the complaint and the documents referred to by the accused Suresh P. Prabhu, could not be looked into. This proposition raised by the learned advocates for the complainants was sought to be challenged by the advocates for the accused Suresh P. Prabhu, contending that this court having been seized of the matter by virtue of the 23 criminal revision applications and counter criminal writ petitions, was fully empowered to look into the documents and come to its independent finding.
26. Since the issue of resignation of the accused Suresh P. Prabhu as per the defence raised by him and its denial by the complainant is a vital question, the same is required to be considered thoroughly. Therefore, it is necessary to point out what is the exact legal position in this regard.
27. Mr. Nadkarni, learned senior counsel relied upon the following authorities :
1. Rajesh Bajaj v. State NCT of Delhi, ;
2. Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, ;
3. Achutha Pal v. Registrar of Companies [1966] 36 Comp Cas 598 (Ker) ;
4. K. M. Mathew v. State of Kerala ;
5. Rajan Kinnerkar v. Eric Cordeiro [1994] 80 Comp Cas 487 (Bom) ; [1994] Mah. LJ 677 ;
6. Nilamani Routray v. Bennett Coleman and Co. Ltd. ;
7. P. Rajarathinam v. State of Maharashtra ;
8. Rajathi v. C. Ganesan ; and
9. Bharathi N. Wadhwana v. Arjun Kishandas Jaising [2000] 5 Bom CR 436.
28. On the other hand, Mr. Gupte and Mr. Dessai, relied upon the following authorities :
1. Girdhari Lal Gupta v. D. N. Mehta, ;
2. Sham Sunder v. State of Haryana . ;
3. Municipal Corporation of Delhi v. Ram Kishan Rohtagi ;
4. State ofHaryana v. Brij Lal Mittal [1998] 93 Comp Cas 329 ; [1998] 3 JT 584 ;
5. Kusum A. Bardeskar v. Babulal Tarachand Shah [1998] 4 LJ 654 ;
6. Pannalal Sunderlal Choksi v. State of Maharashtra [2000] 4 Mah. LJ 674 ;
7. Dushyant D. Anjaria v. Wall Street Finance Ltd. [2001] 105 Comp Cas 655 (Bom) ; [2001] All. M. R. (Crl.) 62.
29. In Glossop v. Glossop [1907] Ch. D 370, a judgment of the Chancery Division, which was subsequently followed by other High Courts and the Supreme Court and mainly in Satish Mehra v. Delhi Administration and also upon circulars and clarifications upon company law and communications, etc., so far as resignation of directors is concerned.
30. Out of the aforesaid authorities cited by Mr. Gupte and Mr. Dessai, I am not taking into consideration the authorities cited in support of the contention that in a complaint under Section 138 of the said Act and for compliance with Section 141 of the said Act, allegations against the director that he was in charge of the day-to-day affairs of the company are necessary, because the complainants who are represented by Mr. Nadkarni, have made specific allegations satisfying the requirements of Section 141 of the said Act and the complainants who are represented by Mr. Tamba and others have joined accused Suresh P. Prabhu as managing director-cum-chairman. Those authorities which I am not taking into consideration from out of the above are as under :
31. Sham Sunder v. State of Haryana . This was an appeal against conviction under the Essential Commodities Act, 1955, and there was no evidence whatsoever to indicate even remotely that all the partners were doing the business of the firm and therefore, the Supreme Court came to the conclusion that it was impossible to hold that when the offence was committed all the partners were conducting the business of the firm.
32. State of Haryana v. Brij Lal Mittal [1998] 93 Comp Cas 329 ; [1998] 3 JT 584. In this case, under the Drugs and Cosmetics Act, 1940, there was nothing but a bald statement in the complaint that the respondents were the directors or the manufacturers and there were no allegations to indicate even prima facie, that they were in charge of the company and also responsible to the company for the conduct of the business and, therefore, the Supreme Court upheld the order of the High Court quashing the prosecution against those respondents.
33. H. M. Dave v. Gitanjali Shah [1998] 4 LJ 830. In this case decided by Justice Pandya, the averments against the petitioner/accused No. 4, were found insufficient. There was nothing against the petitioner/accused No. 4 to show that he was responsible for the day-to-day affairs of the company and, therefore, the court came to the conclusion that it will not be possible to proceed against him under Section 138 of the said Act. Merely because he was a director that by itself would not make him answerable.
34. Pannalal Sunderlal Choksi v. State of Maharashtra [2000] 4 Mah. LJ 674. In this case there was no allegation against the petitioners before the High Court or the accused in the complaint case that they were in charge of the company and responsible for the conduct of the business of the company. In the complaint filed by the Drug Inspector there was nothing to show that those directors were in charge of and were responsible to the company for the conduct of the business of the company. The court, therefore, held that mere status as director cannot be taken into account for the purpose of prosecution and, therefore, the process issued against those directors was quashed.
35. State of Haryana v. Brij Lal Mittal [1998] 93 Comp Cas 329 ; [1998] 3 JT 584. This was a case under the Drugs and Cosmetics Act, 1940, but the Supreme Court found that there were no allegations that these directors were in charge of the company and responsible for the conduct of its business and, therefore, it was held that they could not be prosecuted.
36. It is not necessary to consider all these judgments because so far as the complainants represented by Mr. Nadkarni are concerned, necessary allegations in that regard against the accused Suresh P. Prabhu are there and so far as the complainants represented by Mr. Tamba are concerned, the accused Suresh P. Prabhu is joined as managing director-cum-chairman.
37. At this juncture before considering the rival submissions, it is necessary to take into consideration the objection raised by Nadkarni that in an application for quashing the issue of process, the court can only look into the allegations made in the complaint and not to the defence raised by the accused, or the documents relied upon by the accused.
38. So far as the factual aspect of the matter is concerned, the accused Suresh P. Prabhu when he applied for recalling of the process before the magistrate, relied upon the following documents : resignation letter dated May 6, 1996, and submission of Form No. 32 by the company secretary from the Bombay office to the Registrar of Companies. These two documents were exhibits A and B and they were relied upon in the said application for recall of process. After the complainants filed reply to the said application, accused Suresh P. Prabhu filed a rejoinder and then relied upon exhibit A, which is a letter of the company secretary with the endorsement of the company secretary, dated May 6, 1996. Then exhibit B was a copy of the letter dated May 9, 1996, addressed by the accused Suresh P. Prabhu to the Registrar of Companies with endorsement from the Registrar of Companies dated May 9, 1996. Form No. 32 dated marked as exhibit C, which also included another copy of Form No. 32 and the consent of Yogesh Tiwari and Vishesh Menon to act as directors of the said company, dated December 13, 1996, and which was marked exhibit D. The accused Suresh P. Prabhu also relied upon the circular which was sent by the company to its investors and upon which reliance was placed by the complainant himself. That was also tendered as a document of reliance by the accused Suresh P. Prabhu as exhibit E. It will be clear from the above, that the accused Suresh P. Prabhu relied upon all the documents from exhibit A to exhibit E, in support of his application for recalling of the process when he moved the magistrate in that regard.
39. At this juncture it is necessary to consider the submissions made by Mr. Nadkarni. Firstly, according to him the judgment of the Supreme Court in KM. Mathew v. State of Kerala , cannot be relied upon by the accused Suresh P. Prabhu, since the Supreme Court has now referred to the judgment of Mathew's case to a larger Bench as per the judgment of the Supreme Court in Nilamani Routray v. Bennett Coleman and Co. Ltd. . In that case the company and two others were summoned. After appearing, the company filed an application for recall of process. The complainant opposed the application on the ground that once the process was issued the court had no powers to recall or review it. The magistrate relied upon K. M. Mathew's case and allowed the application. The appellant moved the High Court in revision petition, which was rejected on the basis of the above judgment in K. M. Mathew's case and in that matter the Supreme Court held that K. M. Mathew's judgment required reconsideration, for it is settled that the power of review has to be conferred by law specifically, or by necessary implication and the Code of Criminal Procedure does not confer such power, since the Supreme Court found that K. M. Mathew's judgment required reconsideration. Mr. Nadkarni, contended that since K. M. Mathew's judgment is before the Supreme Court for reconsideration, it could not be relied upon.
40. On the other hand, Mr. Dessai and Mr. Gupte appearing for the accused Suresh P. Prabhu contended that merely because the judgment in K. M. Mathew's case is referred to a larger Bench, it will not cease to operate, at least until it is set aside, altered or changed by the larger Bench. In my opinion, K. M. Mathew's judgment has to be accepted till the same is changed, set aside or modified by the larger Bench. Therefore, it has to be held that the accused has a right to apply to the magistrate for recall of the process (which has been done in the instant case).
41. The next objection of Mr. Nadkarni was that even if such a power is presumed, pursuant to K. M. Mathew's judgment, neither the magistrate, nor any court can look into any material placed by the accused on record for claiming recall of the process. According to Mr. Nadkarni, in such an application for recall the allegations in the complaint only could be seen and nothing more. He, therefore, contended that the contention of the accused Suresh P. Prabhu about his resignation or the date of resignation or the legality and validity of the resignation, or the effect of the resignation, could not be taken into consideration by this court. Mr. Nadkarni in support of his contention relied upon the judgment in the case of K. M. Mathew v. State of Kerala where in paras. 7 and 8, it is observed by the Supreme Court as follows (page 220) :
"7. The High Court seems to be too technical in this regard. If one reads carefully the provisions relating to trial of summons cases, the power to drop proceedings against the accused cannot be denied to the magistrate. Section 204 of the Code indicates that the proceedings before the magistrate commence upon taking cognizance of the offence and the issue of summons to the accused. When the accused enters appearance in response to the summons, the magistrate has to take proceedings under Chapter XX of the Code. But the need to try the accused arises when there is allegation in the complaint that the accused has committed the crime. If there is no allegation in the complaint involving the accused in the commission of the crime, it is implied that the magistrate has no jurisdiction to proceed against the accused.
8. It is open to the accused to plead before the magistrate that the process against him ought not to have been issued. The magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the magistrate to drop the proceedings or rescind the process. The order issuing the process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings if the complaint on the very face of it does not disclose any offence against the accused."
42. From these observations, Mr. Nadkarni contended that even at the time of considering the application for recall of process, only the allegations in the complaint could be looked into. Mr. Nadkarni also relied upon the case decided by the Supreme Court in Rajathi v. C. Ganesan , In that case the Supreme Court was concerned to see if the High Court was justified in invoking its inherent power under Section 482 of the Criminal Procedure Code and the apex court found that the High Court was not so justified. This was on the basis of the judgment in Krishnan v. Krishnaveni [1997] SCC (Crl.) 544. The Supreme Court found that in the case before it the High Court had minutely examined the evidence for coming to the conclusion that the wife was living separately without any reasonable cause and that she was able to maintain herself. The court held that it was not necessary for the High Court to examine the whole evidence. According to Mr. Nadkarni, considering the documents, facts and circumstances relied upon by the accused Suresh P. Prabhu would be tantamount to consideration of evidence in defence minutely.
43. Mr. Nadkarni, also relied upon a judgment of the Supreme Court in the case of Chandra Deo Singh v. Prokash Chandra Bose alias Chabi Bose, , where in para. 12 of the said judgment the Supreme Court held that (page 1434) :
". . . since the object of an enquiry under Section 202 is to ascertain whether the allegations made in the complaint are intrinsically true, the magistrate acting under Section 203 has to satisfy himself that there is sufficient ground for proceeding. In order to come to this conclusion, he is entitled to consider the evidence taken by him or recorded in an enquiry under Section 202, or statements made in an investigation under that section, as the case may be. He is not entitled to rely upon any material besides this."
44. Mr. Nadkarni also relied upon the further observations of the Supreme Court in this case that (page 1435) :
"Thus, where there is prima facie case, even though much can be said on both sides a committing magistrate is bound to commit an accused for trial. All the greater reason, therefore, that where there is prima facie evidence, even though an accused may have a defence like that in the present case that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused."
45. On the other hand, Mr. Shirish Gupte and Mr. Amit Dessai, cited before me a judgment of this court in Pandey Ajay Bhusan v. Sureshkumar Bhikamchand Jain [1994] Crl. LJ 1726, wherein after considering the provisions of Section 482 of the Criminal Procedure Code, it was observed by this court as under :
"If at all the magistrate or the special judge, who is seized of the matter, commits any error, despite the material placed before him by the accused in a proceeding for recalling the process directed to be issued by him, the High Court would certainly intervene in the matter, if it deems fit, in the interest of justice, and pass appropriate orders . . ,"
46. Reliance was placed on para. 14 of the said judgment wherein it was directed that the petitioners "shall be at liberty to move the magistrate under Section 204 of the Criminal Procedure Code . . ., for placing before the magistrate the appropriate material and for praying for recalling the orders granting process against the present petitioners . . . If such an application is so filed the magistrate shall give the parties an opportunity of hearing and placing the material available respectively to them and then consider the material if it deems so fit . . .". Reliance was also placed by Mr. Gupte and Mr. Dessai on the judgment in Satish Mehra v. Delhi Administration , the question in that case was whether the Sessions Judge could look into any material other than that produced by the prosecution to decide whether there was sufficient ground to proceed against the accused. The Supreme Court held as per para, 13 that :
"There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage."
47. Further, reliance was placed by Mr. Gupte and Mr. Dessai on a judgment of the Supreme Court in Om Prakash Sharma v. CBI, Delhi , and it was observed by the Supreme Court (page 683) :
"The question, at the present stage of the proceedings before the trial court would be to address itself to find whether there is sufficient ground for proceeding to the next stage against the accused. If the accused could produce any reliable material even at that stage which might totally affect even the very sustainability of the case, a refusal to even look into the materials so produced may result in injustice, apart from averting an exercise in futility at the expense of valuable judicial/public time."
48. Then reliance was placed upon a judgment of this court in Kusum A. Bardeskar v. Babulal Tarachand Shah [1998] 4 LJ 654, where the High Court took cognizance of the fact of resignation of the director on the basis of Form No. 32 and quashed the proceedings against petitioner No. 2 in that case. Then also reliance was placed upon a judgment of this court in Dushyant D. Anjaria v. Wall Street Finance Ltd. [2001] 105 Comp Cas 655 ; [2001] All. M. R. (Crl.) 62, wherein the High Court was moved by the accused after his application for quashing the proceedings or for recalling of the process was rejected. In that matter, cognizance was taken by the High Court of the resignation tendered by the director and after considering the effect of the resignation, the order of issue of process was quashed and the complaint was dismissed.
49. Mr. Nadkarni on the basis of the rulings referred to above, contended that only the complaint can be looked into even if the accused claims discharge, the documents of the accused or facts pleaded by the accused in his defence cannot be gone into. On the other hand, according to Mr. Gupte and Mr. Dessai, the court can look into all these documents and circumstances pointed out and relied upon by the accused for the purpose of recall.
50. I am unable to agree with the submissions of Mr. Nadkarni that when the accused applies for recall only the allegations in the complaint should be looked into by the court. In view of the judgment in K. M. Mathew's case and the other judgments relied upon by Mr. Gupte and Mr. Dessai, it is clear that the view of the court has changed and an accused is per mitted to point out from reliable material that he cannot be prosecuted or that process issued against him is required to be recalled on the ground raised by him and for that matter the court can look into documents. It is altogether dif ferent whether the court should accept or reject those documents. That will obviously depend on the facts of each case.
51. Now and here comes the crucial question of the defence of the accused Suresh P. Prabhu that he resigned as a director of the company from May 6, 1996. At this juncture it will have to be clarified that the case of the complainants who are represented by Mr. Nadkarni will have to be distinguished and separated from the cases of the complainants who are represented by the learned advocate Mr. Tamba, for the following facts and reasons :
52. In all those complaints, represented by the learned advocate Mr. Tamba, the accused Suresh P. Prabhu has given reply to the notice given by the complainants upon dishonour of the cheques to him as well as to the company. In his reply to the notice, the accused Suresh P. Prabhu has specifically averred and pleaded the fact of his resignation and the date of resignation being May 6, 1996. In all those complaints, the complainants have in their complaints admitted to have received the reply and have tried to deal with the allegations of accused Suresh P. Prabhu about his signature. In all those complaints, the complainants have relied (in their respective complaints) upon certified xerox copy of Form No. 32 issued by the Registrar of Companies. In the application for recall of process filed by the accused Suresh P. Prabhu, in those complaints replies have been filed by the complainants and it is alleged that from the aforesaid Form No. 32 the accused Suresh P. Prabhu resigned sometime in March, 1997, and not in May, 1996, as alleged by him and in all those complaints or in the reply to the application for recall, there is no allegation that the theory of the accused Suresh P. Prabhu about his resignation is a fake, bogus, theory or that it is an afterthought or invented to overcome criminal prosecution.
53. In that view of the matter, what is clear so far as the complainants represented by the learned advocate Mr. Tamba are concerned, is that there is no real dispute about the fact of resignation of accused Suresh P. Prabhu. What is disputed is the date of his resignation and, in my opinion, this will make a world of difference between the cases of complainants represented the learned advocate Mr. Tamba and the cases of complainants represented by the learned advocate Mr. Nadkarni.
54. So far as the complainants represented by the learned advocate Mr. Nadkarni are concerned, nothing has been stated in the respective complaints about the resignation of the accused Suresh P. Prabhu. No notices were given to the accused Suresh P. Prabhu upon dishonour of the cheque and, consequently, there was no reply by the accused Suresh P. Prabhu taking any stand of his resignation. In the list of documents, Form No. 32 has not been referred to or relied upon and in the reply to the application for recalling the complainants have alternatively contended that at any rate, the resignation that was tendered by the accused Suresh P. Prabhu was in March, 1997, Therefore, so far as the complainants represented by learned advocate Mr. Nadkarni are concerned, there is total and complete denial of the fact of resignation along with the alternate submission of resignation having been tendered as alleged by the accused Suresh P. Prabhu in May, 1996.
55. So far as the complaints filed by learned advocate Mr. Mulgaokar are concerned, i.e., Criminal Revision Applications Nos. 32 to 39 of 1999 arising out of Criminal Cases Nos. 29/OA/97/C, 23/OA/97/C, OA/28/97/B, 24/OA/97/D, 27/ OA/97/A, 22/OA/97/D, 25/OA/97/C and 30/OA/97/D, the accused Suresh P. Prabhu is shown as "formerly chairman-cum-managing director" in the complaints. It means that even according to the complainants, the accused Suresh P. Prabhu was not chairman and managing director on the date of the complaints. If that is so, then it was necessary for the complainants to allege in their complaints the date up to which the accused Suresh P. Prabhu was the chairman-cum-managing director and also to allege that he was so, namely chairman and managing director, on the date of issuance of the cheque or its dishonour. There are absolutely no allegations in that regard. Consequently, there is nothing in those complaints to show that the accused Suresh P. Prabhu was in charge of the company or in charge of the day-to-day affairs of the company on the date of the cause of action.
56. It is true that in all these criminal revision applications, generally speaking, there is a challenge to the resignation of the accused Suresh P. Prabhu. However, after going through the original complaints filed by all the 23 complainants, I have found factually the position as stated above and, therefore, these 23 complaints are required to be dealt with separately, though groupwise. One group is represented by the learned advocate Mr. Tamba, the other group by the learned advocate Mr. Nadkarni, the other group by the learned advocate Mr. Mulgaokar and the other group by the learned advocate Mr. Kholkar. So far as the complainants represented by the learned advocate Mr. Nadkarni are concerned, I have already stated that there is basic challenge by his complainants to the fact of resignation by the accused Suresh P. Prabhu. In the complaints the fact of resignation of the accused Suresh P. Prabhu is not at all referred to. They are not relying upon Form No. 32 and they are disputing the contention of the accused Suresh P. Prabhu, that he resigned on May 6, 1996. In a similar situation when the question of resignation was in dispute, I had held, as pointed out by learned advocate Mr. Nadkarni, that being a disputed question of fact, the matter was required to be decided at the trial. That judgment in the case of P. Rajarathinam v. State of Maharashtra and also in the case of Bharati N. Wadhwana v. Arjun Kishandas Jaising [2000] 5 Bom CR 436. In those cases I held that since the complainant was not accepting the genuineness of the documents, namely the documents relied upon by the accused for the purpose of proving the fact of resignation and those copies were xerox copies and not even signed or certified as true copies, the accused were required to prove the fact before the trial court by adducing evidence in that regard. In the instant cases in the present group of criminal revision applications before me so far as the complainants represented by learned advocate Mr. Nadkarni are concerned, his contention is required to be accepted because the complainants represented by him have totally and completely denied the fact of resignation of the accused Suresh P. Prabhu. The criminal revision applications filed by learned advocate Mr. Nadkarni are, therefore, required to be allowed.
57. However, so far as the criminal revision applications filed by the learned advocate Mr. Tamba are concerned, though Mr. Tamba contended that the fact of resignation of the accused Suresh P. Prabhu is a disputed fact, the complaints present a different pictures. Firstly all the complainants before filing the complaints were made aware by the accused Suresh P. Prabhu by his reply that he has resigned from the company as director and, consequently, as managing director. The accused Suresh P. Prabhu in his reply notice has specifically given the date of his resignation and has contended that he has ceased to be a director and also has ceased to be in charge of the company, or the day-to-day affairs of the company on the date of resignation or from the next date. In all those cases in order to disprove the contention of the accused Suresh P. Prabhu, the complainants have relied upon the certified xerox copy of Form No. 32 issued by the Registrar of Companies, where the date of resignation of the accused Suresh P. Prabhu is shown as May 6, 1996. In addition, the complainants have in all those cases filed the circular issued by the company wherein the fact of resignation of the accused Suresh P. Prabhu on May 6, 1996, is specifically mentioned, so as to bring it to the notice of the complainants. In addition to the replies filed by the complainants to the application of the accused Suresh P. Prabhu for recall, their stand is that the accused Suresh P. Prabhu resigned as per the date mentioned in Form No. 32.
58. It will, therefore be clear that so far as the complainants represented by learned advocate Mr. Tamba are concerned, the dispute is not about the resignation, but the dispute is about the date of resignation and, therefore, it has to be seen whether this dispute can be resolved by this court only on the basis of the documents tendered by the parties, or whether the matter is required to be sent back to the trial court to decide this question at the time of deciding the complaints on merits. My finding is that these questions can be decided by this court on the basis of the documents produced before the magistrate and before the Sessions Judge by both the parties for the following reasons :
59. The claim and contention of the accused Suresh P. Prabhu is that he tendered his resignation on May 6, 1996. It is true that the letter of resignation tendered by him in the court before the magistrate was a simple letter and it is not certified to be a true copy by the company to whom the letter was submitted. However, it cannot be said that this letter is fabricated, forged or false because no such stand is taken by the complainants either in their complaints or in the reply filed by them to the application of the accused Suresh P. Prabhu for recall. In addition, the complainants themselves have filed a circular issued by the company wherein the fact of resignation and the date of resignation are disclosed by the company and all those complainants to whom the circular was sent and who had received it. Then, in the reply given by the accused Suresh P. Prabhu to the notices of the complainants, he has specifically averred that he has submitted his resignation on May 6, 1996. This reply was given by accused Suresh P. Prabhu immediately and without any delay and, therefore, it cannot be said that the date of resignation alleged by the accused Suresh P. Prabhu is an afterthought. This is the consistent stand from the beginning, i.e., even before the filing of the complaints, through his individual reply, as well as the circular of the company and in view of these two circumstances, the letter of resignation can be relied upon even though the said letter is not a certified or authenticated copy.
60. The contention of the complainants in the complaints as well as through the xerox certified copy of Form No. 32 and through replies filed by them to the application for recall is that the accused Suresh P. Prabhu has resigned on and from March 15, 1997, because in Form No. 32 it is this date, i.e., March 15, 1997, which is shown as the date of resignation. The learned advocate Mr. Tamba repeatedly urged that since Form No. 32 is a xerox certified copy and since Form No. 32 discloses March 15, 1997, as the date of resignation, the case of the accused Suresh P. Prabhu that he resigned on 6th or 7th May, 1996, was liable to be rejected.
61. At this juncture, it is necessary to find out as to what this Form No. 32 is and under which provision of the company law it is required to be submitted by the company and what is the effect of the entries in the said Form No. 32.
62. This Form No. 32 is covered by Section 303, Sub-section (2) of the Companies Act, which provides that :
"Section 303(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 director, 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."
63. In Form No. 32 for example, which is annexure H in Criminal Revision Application No. 13 of 1999, there are six columns on the first page and the fifth column is about the date of appointment or change and against the name of the accused Suresh P. Prabhu, which is at serial No. 2 in the said Form, March 15, 1997, is the date given in the fifth column and in the sixth column which is "brief particulars of change" it is written "resigned as director". According to learned advocate Mr. Tamba, in view of this fact, the date of resignation of accused Suresh P. Prabhu is to be taken as March 15, 1997, and not 6th or 7th May, 1996.
64. With respect, I am unable to agree with this submission because of the provision of Section 303(2) of the Companies Act, as quoted above. What is expected of a company under Sub-section (2) of Section 303 of the Companies Act is to send a return in duplicate in the prescribed form or a notification in duplicate in the prescribed form, of any change specifying the date of change and the period is 30 days from the happening thereof. Obviously, it means that as soon as a director resigns or something happens requiring a change in the register maintained by the company under Section 303 of the Companies Act, the change has to be carried out in the said register and thereafter the Registrar of Companies has to be informed about the same within the period stipulated under Sub-section (2). What is referred to in Sub-section (2) is to "send to the Registrar a notification . . . specifying the date of change." It is not clear from annexure H as stated above, that March 15, 1997, is recorded by the Registrar as the date of change in the register maintained under Section 303 of the Companies Act, or the date of resignation of accused Suresh P. Prabhu.
65. I have already held that the complainants represented by the learned advocate Mr. Tamba have not disputed the fact of resignation and from the circumstances mentioned above, the case of accused Suresh P. Prabhu that he resigned on 6th or 7th May, 1996, has to be accepted as the date and hence for the reasons stated above, the mentioning of March 15, 1997, as the date in Form No. 32 annexure H, cannot be said to be the date of resignation.
66. Mr. Dessai and Mr. Gupte relied upon a number of authorities wherein it has been held and particularly the judgment of Justice Lodha in Dushyant D. Anjaria v. Wall Street Finance Ltd. [2001] 105 Comp Cas 655 (Bom) ; [2001] All. M. R. (Crl.) 62, that the resignation of a director is effective from the date he submits it, because of his intention to resign and it is for the company to comply with the formalities required under Section 302 or Section 303 of the said Act and, therefore, where there was delay on the part of the company or negligence and laches on the part of the company in intimating the date of resignation to the Registrar, the director who has resigned could not be saddled with responsibility and liability. Mr. Gupte and Mr. Dessai relied upon a number of authorities right from Glossop v. Glossop [1907] Ch. D. 370, in support of their contention that the resignation of a director becomes effective on and from the date it is tendered or submitted and from the articles of association of the company, i.e., the accused company in this case, the resignation becomes effective from the date it is tendered and there is no formality of the board accepting the same. No serious dispute was raised by learned advocate Mr. Tamba over this view of the court right from Glossop v. Glossop [1907] Ch. D. 370 and, therefore, suffice to say that when the articles of association of this company provided that resignation will be effective from the date it is tendered and when the accused Suresh P. Prabhu has raised a defence that he tendered it on a particular day, i.e., March 6, 1996, and when the fact of resignation is not in dispute, but the date of resignation is in dispute and further, when the stand of the accused Suresh P. Prabhu is consistent from the beginning and the documents tendered by him are consistent with this stand, then it has to be accepted that this is not a case requiring the accused Suresh P. Prabhu to face trial and prove his defence. The court can, in the circumstances, safely accept the defence of the accused Suresh P. Prabhu that he resigned on and from May 6, 1996, and ceased to have any connection or concern with the accused company or that on and from that date he was not in charge of or in the management of the day-to-day affairs of the company. To sum up again, the cases represented by the learned advocate Mr. Nadkarni, are required to be distinguished because they have challenged the factum of resignation, but the cases represented by the learned advocate Mr. Tamba are on a different footing because there is no challenge to the factum of resignation, but challenge to the date of resignation and since this court can, or even the magistrate or Sessions Judge could go into the documents produced by the accused Suresh P. Prabhu in defence, those documents can be looked into and are required to be accepted to come to the conclusion so far as the complainants represented by learned advocate Mr. Tamba are concerned. The fact of resignation of the accused Suresh P. Prabhu on 6th or 7th May, 1996, has to be accepted.
67. A question may arise whether the court after accepting the fact of the resignation of the accused Suresh P. Prabhu as and from May 6, 1996, could dismiss some criminal revision applications (criminal revision applications represented by the learned advocate Mr. Tamba) and allow some criminal revision applications (as represented by the learned advocated Mr. Nadkarni) on the ground that the fact of resignation is a fact in dispute. However, it will have to be borne in mind that this court is not moved by any party for a declaration regarding the status of the accused Suresh P. Prabhu as a director, or his status as a ex-director, or about his resignation being effective from a particular date. The question of resignation is raised by the accused Suresh P. Prabhu in his defence and even though all the 23 complaints are identical on facts, so far as the relationship of the accused Suresh P. Prabhu with the company is concerned, every complaint is a separate complaint based on a separate cause of action. Each of the complainants will succeed in his complaint on the evidence he adduces and proof of a fact, both for the complainant and the defence of the accused will be separate depending on the documents filed, the nature of examination-in-chief, the nature of the cross-examination, the nature of objections raised to the admissibility of the documents, its decision by the court and the oral submissions ultimately made on the basis of the evidence recorded. The trial court will have to give separate and distinct findings when the matter goes on for trial. Therefore, merely because all these criminal revision applications are clubbed together before this court and they are decided by this common judgment for the sake of convenience, will not absolve the parties from proving the facts independently and separately in respect of their complaints or, in that view of the matter, for the accused to prove his defence. Therefore, even if some of the criminal revision applications are liable to be dismissed, for example, the revision applications represented by the learned advocate Mr. Tamba, on the aforesaid ground, the court cannot dismiss the other revision applications because, as observed and found by me, from the arguments of the learned advocate Mr. Nadkarni for example, he is challenging the factum of resignation. In the judgments delivered by me and relied upon by learned senior advocate Mr. Nadkarni, in the case of P. Rajarathinam v. State of Maharashtra and Bharati N. Wadhwana v. Arjun Kishandas Jaising [2000] 5 Bom CR 436, the complainants had disputed the fact of resignation as in the criminal revision applications filed by learned advocate Mr. Nadkarni and, therefore, the matters were remanded. In the case of Dushyant D. Anjaria v. Wall Street Finance Ltd. [2001] 105 Comp Cas 655 (Bom) ; [2001] All. M. R. (Crl.) 62 decided by Justice Lodha, there was an admission by the other side of the resignation, and the question was only about the effective date of resignation.
These are all criminal cases arising out of complaints by the complainants and, therefore, each case will have to be separately heard and decided. Delivering a common judgment will not make the findings regarding one set of facts, applicable to the other set of facts automatically. Therefore, even though, on the basis of the complaints and the documents, the pleadings and replies in the cases represented by the learned advocate Mr. Tamba and Mr. Mulgaokar, I have come to the conclusion that the fact of resignation of the accused Suresh P. Prabhu is proved from the documents, no such finding can be given regarding the complainants represented by the learned advocate Mr. Nadkarni and Mr. Kholkar. I have given all the reasons in that regard hereinbefore.
68. To sum up, in all the complaints out of which the criminal revision applications arise and which are represented by the learned advocate Mr. Tamba, what is in dispute is the date of resignation and for the reasons stated above, I hold that so far as these complaints are concerned, the accused Suresh P. Prabhu has succeeded in proving that he has resigned on the date alleged by him and that on the date of the offence, i.e., the dishonour of the cheque, he was not in charge of the company, nor in the day-to-day affairs of the company, as contemplated under Section 141 of the said Act and, therefore, the criminal revision applications filed by Mr. Tamba are required to be dismissed and the order of the learned Sessions Judge is required to be confirmed, though on different grounds. It is also required to be noted here that in the complaints filed and represented by the learned advocate Mr. Tamba, or the criminal revision applications arising out of those complaints, the accused Suresh P. Prabhu was impleaded as managing director and chairman of the company and, therefore, it was not necessary to specifically allege that he was in charge of the company, or that he was in charge of the day-to-day affairs of the company.
69. Further, to sum up, so far as the other complainants represented by the learned senior advocate Mr. Nadkarni, there is a basic and fundamental challenge to the factum of resignation and not only about the date of resignation. Therefore, the accused Suresh P. Prabhu will have to prove in those complaints that he resigned on the date which he alleges in his application for recall of process. So far as criminal revision applications filed by learned senior advocate Mr. Nadkarni are concerned, the complainants represented by him had alleged, in their respective complaints, that the accused Suresh P. Prabhu, was in charge of the company, or was responsible for the day-today management of the company. Therefore, there is compliance with Section 141 of the said Act.
70. So far as the two criminal revision applications filed by Mr. Kholkar are concerned, i.e. Criminal Revision Applications Nos. 40 and 41 of 1999, the accused Suresh P. Prabhu is shown as chairman-cum-managing director. That is sufficient compliance with Section 141 of the said Act and further, the dispute between these complainants and the accused Suresh P. Prabhu, is about the factum of resignation. Therefore, regarding these two criminal revision applications and the complaints, arising out of them, the accused Suresh P. Prabhu will have to prove his defence at the time of trial.
71. So far as the complainants represented by the learned advocate Mr. Mulgaokar are concerned, in all the complaints, out of which the Criminal Revision Applications Nos. 32, 33, 34, 35, 36, 37, 38 and 39 of 1999 arise, the complainant was Swaraj Investment Company, i.e. one complainant has filed these eight complaints. The accused Suresh P. Prabhu has been joined there as accused No. 2, but he is shown in the title of the complaint as "formerly chair-man-cum-managing director" of the accused No. 2-company, Western India Financial Services Ltd. and in para. 1 of the complaints it is stated that the accused No. 2, i.e. the accused Suresh P. Prabhu, was (stress added), the chair-man-cum-managing director and the other accused were the directors and were in charge of and responsible to the company for the conduct of the business of the company at the time when the offence complained of herein was committed.
72. It will be clear that the complainant Swaraj Investment Company, itself in all the complaints has accepted the fact that the accused Suresh P, Prabhu was not the chairman-cum-managing director on the date of the complaints because he has been shown as "formerly chairman-cum-managing director". In fact, if the complainant itself described accused No. 2, Suresh P. Prabhu, as "formerly chairman-cum-managing director", then it was incumbent upon the complainant to specify in the complaints the date from which the accused Suresh P. Prabhu ceased to be the chairman-cum-managing director, or the date up to which he was chairman-cum-managing director and further allege whether on the date of dishonour of the cheque he was in charge of the affairs of the company, or in the day-to-day management of the company, as required under Section 141 of the said Act. But even though in the title the accused Suresh P. Prabhu is shown as "formerly chairman-cum-managing director", nowhere in the complaint it is alleged that on the date of dishonour of the cheque or the date of issuance of the cheque, he was in charge of the company. Therefore, so far as the complainants represented by the learned advocate Mr. Mulgaokar are concerned, the objections of the learned advocates Mr. Gupte and Mr. Dessai it will have to be held that these complaints lack in material particulars and the finding of the learned Sessions Judge so far as Section 141 of the said Act is concerned, in that regard will have to be upheld. Since these complaints of complainants represented by the learned advocate Mulgaokar do not fulfil the requirements of Section 141 of the said Act, the other issue regarding the resignation of the accused Suresh P. Prabhu need not be taken into consideration.
73. In the result, I pass the following order :
(a) Criminal Revision Applications Nos. 13, 14, 15, 17, 18, 19, 20, 21, 22, and 23 of 1999, filed by the learned advocate Mr. G. K. Tamba are dismissed and the order of the appellate court recalling process against the accused Suresh P. Prabhu, is confirmed, though on different grounds.
(b) All the criminal revision applications filed by the learned senior advocate Mr. V. B. Nadkarni, i.e. Criminal Revision Applications Nos. 27, 28 and 29 of 1999 and the criminal revision applications filed by learned advocate Mr. P. A. Kholkar, i.e. Nos. 40 and 41 of 1999, are allowed. The order of recall of process passed by the learned Sessions Judge against the accused Suresh P. Prabhu, is set aside and the matter is remanded to the trial court for decision on merits.
(c) Similarly, the criminal revision applications filed by the learned advocate Mr. J. P. Mulgaokar, namely Criminal Revision Applications Nos. 32, 33, 34, 35, 36, 37, 38 and 39 of 1999 are dismissed and the order of recall of process passed by the learned Sessions Judge, against the accused Suresh P. Prabhu is maintained.
(d) In all the criminal revision applications, there will be no order as to costs.
(e) Needless to say that wherever the criminal revision applications are allowed by this court, the respective complaints filed against the accused Suresh P. Prabhu shall stand dismissed.
(f) It is clarified that so far as the criminal revision applications which are allowed and remanded to the trial court, the accused Suresh P. Prabhu may file application for his exemption and the same will be considered and decided by the court at the earliest.
(g) So far as the criminal writ petitions filed by the accused Suresh P. Prabhu are concerned, they stand disposed of on the basis of the orders passed in the criminal revision applications, with no order as to costs. Rule made accordingly.