"REPORTABLE"
* HIGH COURT OF DELHI AT NEW DELHI
+ Crl. M. C. No. 3409/2007
Date of decision : 12th December, 2008
# RANJIT CHAUDHARY & ANR. ...... Petitioners
! Through : Mr. S.K. Sharma, Adv.
Versus
$ MOHI KHAN ..... Respondent
^ Through : Nemo
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral)
1. Petitioners Sh. Ranjit Chaudhary and B.K. Chaudhary seek quashing of complaint case no.4435/2006 under Section 138 of the Negotiable Instruments Act titled „Mohi Khan v. Bombay Bazaar & Ors.‟ and Crl. M.C. No. 3409/2007 Page 1 of 8 proceedings arising there from which is pending adjudication in the court of learned Metropolitan Magistrate Sh. Rakesh Kumar.
2. Succinctly, two cheques bearing nos. 163972 dated 6.12.2002 for Rs. 12,500/- and 163972 dated 10.12.2002 for Rs. 15,000/- drawn on Punjab and Sindh Bank were issued by M/s Bombay Bazaar Ltd. (hereinafter referred to as company) in favour of Mohi Khan complainant (respondent herein) to clear its liability upon purchase of air conditioners from the complainant. Complainant presented these cheques for encashment in his account in Canara Bank, DDU Marg on 29.1.2003. However, the cheques were returned unpaid and were dishonoured by the bankers with the remarks "insufficient funds". Complainant sent legal notice dated 20.2.2003 to the company, its Managing Director/CEO as well as the petitioners and all the directors of the company calling upon them to pay the amount of the bounced cheques. Reply dated 3.3.2003 was sent by the petitioners to the said legal notice. On non receipt of his payment against the impugned cheques complaint Crl. M.C. No. 3409/2007 Page 2 of 8 under Section 138 of the Negotiable Instruments Act was filed by the complainant in May,2003. After taking cognizance of the offence, the trial court issued summons against the petitioner which have not yet been served upon the petitioners. Hence this petition.
3. It is submitted by learned counsel for the petitioners that the cheques in question were signed and issued by Vijay Tata, director/CEO of the company Bombay Bazaar Ltd. Also petitioner no.1 had sent reply on 3.3.2003 to the advocate of respondent against the legal notice for demand of payment dated 20.2.2003 thereby informing that petitioner nos. 1 and 2 had resigned from the company w.e.f. 14.9.2002 and a copy of Form-32 was also attached thereto. It is further submitted that petitioners have not been served with the notice of the case and only recently petitioners came to know that the trial court had ordered for furnishing correct addresses of the petitioners.
4. It is further asserted by counsel for the petitioners that the dates on which the two cheques were issued, Crl. M.C. No. 3409/2007 Page 3 of 8 that is, on 6.12.2002 and 10.12.2002 petitioners were not the directors as both the petitioners had already resigned on 14.9.2002. Even during the period when they were the directors of Bombay Bazaar Ltd., petitioners were not involved in the day to day functioning of the company and therefore are not liable or responsible for dishonourment of the cheques.
5. Perusal of reply dated 3.3.2003 sent to the complainant by petitioner no.1 indicates that there was shuffling in the constitution of directors of the company and Vijay Tata took charge of the company whereas petitioners resigned from the company w.e.f. 14.9.2002. It has been specifically stated in the reply that cheque no. 163971 dated 6.12.2002 for Rs. 12,500/- and cheque no. 163972 date 10.12.2002 for Rs. 15,000/- were issued by Vijay Tata, Director of Bombay Bazaar Ltd. Form No.32 filed with the Registrar of Companies, Mumbai also makes it clear that the petitioners Ranjit Chaudhary and B.K. Chaudhary had resigned on 14.9.2002 from Bombay Bazaar Ltd.
Crl. M.C. No. 3409/2007 Page 4 of 8
6. Therefore, it is lucid that petitioners had resigned from the company long before the cheques in question were issued and production of Form-32 filed with the ROC by the petitioners to establish their effective resignation is also ample for this petition to succeed. On the contrary respondent has not given any evidence to show that petitioners were involved in the day to day functioning or were involved in the conduct of business of the company at any time either after resignation on 14.9.2002 or till after the cheques were issued.
7. Hitherto, admissibility and reliability of Form-32 is concerned, Form -32 was submitted to the Registrar of Companies by Vijay Tata being the director and responsible person in Bombay Bazaar Ltd. Certified copy of Form-32 is a public document as per Section 74 of the Evidence Act and the Court has to presume the genuineness of such certified copies as per Section 79 of the Evidence Act when no counter documentation is projected by the complainant.
8. In Dr.(Mrs.) Sarla Kumar Vs Srei International Crl. M.C. No. 3409/2007 Page 5 of 8 Finance Ltd.) 132 (2006) DLT 363 , the cheque was issued in 2003 and the petitioner ceased to be the director of the Company in 1994. A certified copy of Form-32 issued by the Registrar of companies was filed by the petitioner and this court held that form 32 was a conclusive proof that the petitioner resigned in 1994 and was not the director at the material time and quashed the proceedings against the petitioner.
9. This view was again upheld in another judgment of this court H.R. Kapoor v. Securities and Exchange Board of India 149(2008) DLT 591 wherein petitioners filed petitions under Section 482 Cr.P.C. and filed certified copies of Form-32 and it was observed by the court that the document Form-32 being a public document, which can be easily verified even on inspection of the records of the company with the Registrar of the Companies, does not require elaborate evidence on trial.
10. In J.N. Bhatia v. State 139 (2007) DLT 361 this court pointed out that Form-32 if filed before the issuance of the dishonoured cheque then such Form- Crl. M.C. No. 3409/2007 Page 6 of 8 32 can be safely acted upon to quash the complaint.
11. In the present case Form-32 was filed with the Registrar of Companies before the cheque was even issued. The cheques pertaining to the case were drawn between the period 6.12.2002 to 30.1.2003 and during that period, the petitioners did not function as Chairman or Directors of the accused company and they were also not in-charge of and responsible for the affairs of the company when the cause of action arose for non payment of the cheque amount on receipt of respective statutory notices. It is a settled law that only a person who is responsible for conduct of business of the company at the time of commission of the offence can be made liable for the offence. Acceptance of resignation and filing of Form 32 with Registrar of Companies establishes the fact that petitioners ceased to be the directors of the company. Criminal liability, therefore, cannot be fastened on the petitioners after they ceased to be directors of the company.
Crl. M.C. No. 3409/2007 Page 7 of 8
12. Hence in light of the facts and circumstances of the case, the petition is allowed. Complaint case No.4435/2006 only against the petitioners Ranjit Chaudhary and B.K. Chaudhary is hereby quashed.
13. Attested copy of the order be sent to the trial court ( ARUNA SURESH ) JUDGE December 12, 2008 hm/San.
Crl. M.C. No. 3409/2007 Page 8 of 8