Bombay High Court
Lata Pramod Dave vs M/S. Mode Export Private Limited ... on 17 March, 2016
Bench: Dr. Shalini Phansalkar-Joshi
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.3188 OF 2014
Mrs. Lata Pramod Dave, ]
Aged : 42 Years, ]
R/at EC-58, A-302, ]
Mangal Geet Co-op. Hsg. Society Ltd., ]
Evershine City, Vasai (East), Thane-401201. ] .... Petitioner
Versus
1. M/s. Mode Export Private Limited, ]
having registered office at Gala No.455, ]
Shah & Nahar Industrial Estate, ]
Dhanraj Mills Compound, ig ]
Sitaram Jadhav Marg, Lower Parel, ]
Mumbai - 400 013. ]
]
2. The State of Maharashtra ] .... Respondents
Mr. Yashpal Thakur, i/by M/s. PKA Advocates, for
the Petitioner.
Mr. Kapil Dave, i/by Mr. Santosh Thakur, for
Respondent No.1.
Mrs. H.J. Dedia, A.P.P., for Respondent No.2-
State.
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
RESERVED ON : 1ST MARCH 2016.
PRONOUNCED ON : 17TH MARCH 2016.
JUDGMENT :
1. Rule. Rule is made returnable forthwith, by consent.
2. Heard learned counsel for both the parties and learned A.P.P. for the
Respondent No.2-State.
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3. By this Petition, preferred under Section 482 of Cr.P.C. and Article
227 of Constitution of India, Petitioner challenges the order dated 16th
September 2013 passed by Metropolitan Magistrate, 7th Court at Dadar,
Mumbai, in Criminal Complaint No.1675/SS/2013 of issuing process
against her for the offence punishable under Section 138 r/w. 141 of
Negotiable Instruments Act.
4. Facts of the Petition are to the effect that, Respondent No.1 herein
had, on the request of Original Accused No.2, advanced financial facilities
by way of Inter Corporate Deposit for the Accused No.1 i.e. M/s. Swajay
Finance Private Limited to the extent of Rs.1,50,00,000/-. Against the said
Inter Corporate Deposit availed by Accused No.1, Accused No.2 pledged
2,25,000 Shares of M/s. Usher Agro Limited with Respondent No.1.
Accordingly, a Loan Agreement was executed by and between
Respondent No.1 and Accused No.1 on 13 th August 2010. The period
stipulated in the said Loan Agreement was, on the request of Accused
No.2, extended from time to time and finally it was renewed for 180 days
from 27th August 2012 to 26th February 2013 by virtue of a Loan
Agreement executed on 5th September 2012. As per the terms of the Loan
Agreement, Accused No.1 issued seven post dated cheques in favour of
Respondent No.1 as follows :-
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Sr. Amount Drawn on Bank
Cheque No. Dated
No. (in Rs.) and Branch
Indian Bank, Vasai
1 952596 27.09.2012 2,70,000/- Branch, Thane,
Maharashtra.
2 952597 27.10.2012 2,70,000/- -- do --
3 952598 27.11.2012 2,70,000/- -- do --
4 952599 27.12.2012 2,70,000/- -- do --
5 952600 27.01.2013 2,70,000/- -- do --
6 952601 27.02.2013 2,70,000/- -- do --
7 952611 27.02.2013 1,50,00,000/- -- do --
5.
Out of these 7 post dated cheques, 6 cheques of the amount of
Rs.2,70,000/- each were honoured, when presented for payment by
Respondent No.1. However, the last cheque bearing No.952611 for the
amount of Rs.1,50,00,000/- came to be dishonoured for the reason
"Payment Stopped by Drawer", vide Bank Memo dated 6th March 2013.
Hence, after issuance of statutory demand notice dated 4 th April 2013,
Respondent No.1 filed complaint under Section 138 r/w. 141 of Negotiable
Instruments Act against Accused No.1 - M/s. Swajay Finance Private
Limited and its three Directors, including Managing Director - Vinod
Kumar Chaturvedi (Accused No.2) the present Petitioner and her
husband-Pramod Dave.
6. On this complaint, after recording verification of the representative
of Respondent No.1, the Trial Court conducted requisite inquiry under
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Section 202 of Cr.P.C. and on being satisfied with the material produced
on record, the Trial Court was pleased to issue process against all the four
Accused vide its order dated 16th September 2013.
7. Being aggrieved by the same, Original Accused No.4 - the present
Petitioner has preferred this Writ Petition contending, inter alia, that she
has ceased to be the Director of Accused No.1-Company w.e.f. 1st
January 2013, in view of the resignation letter tendered by her to the said
Company. Therefore, at the relevant time, when the offence was
committed, she was not on the Board of Directors. Even during her tenure
as Director, she had neither executed, nor signed any document on behalf
of the Company. In support of her contention, the Petitioner has relied
upon her letter of resignation dated 1st January 2013, which bears the
acknowledgement and endorsement of Accused No.1-Company of
receipt of her resignation on the same date. She has also produced on
record the copy of "Form-32" and Annual Return duly filled by Accused
No.1 with the Registrar of Companies, Mumbai, which, according to
learned counsel for the Petitioner, constitute prima facie evidence with
regard to the Petitioner's resignation w.e.f. 1st January 2013.
8. It is urged by learned counsel for the Petitioner that, once the
Petitioner has duly discharged her obligation as a Director by tendering
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resignation letter dated 1st January 2013 and expressed her desire to
discontinue with Accused No.1 - Company and once her letter of
resignation is also duly accepted and acted upon and also found reflected
in "Form-32" and Annual Return of Accused No.1 - Company, she can no
more be held liable for any of the acts committed by Accused No.1 -
Company or its Directors and, therefore, issuance of process against her
for dishonour of the cheque, which took place subsequent to her
resignation, is clearly an abuse of the process of law. Learned counsel for
the Petitioner, therefore, by relying upon the various authorities of the
Apex Court and this Court, has strenuously urged for quashing of process
issued against the Petitioner by the Trial Court.
9. Per contra, learned counsel for Respondent No.1 has fully
supported the impugned order of the Trial Court by contending, inter alia,
that the complaint filed before the Trial Court contains sufficient
averments, as required under Section 141 of Negotiable Instruments Act.
The contents of the complaint clearly show that the Petitioner herein,
along with the other Directors, actively participated in negotiation and in
execution of the documents in respect of the loan transaction. Moreover,
at the relevant time, the Petitioner was in-charge of and responsible for
the conduct of the business of Accused No.1 - Company. It is, therefore,
urged that, on the basis of these averments in the complaint, the Trial
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Court has rightly issued process against the Petitioner. Hence, it will not
be proper on the part of this Court, in exercise of its powers under Section
482 of Cr.P.C. or Article 227 of Constitution of India, to quash the process
issued against the Petitioner, as, prima facie, no illegality, impropriety,
much less, perversity is found in the impugned order of the Trial Court.
10. As to the alleged resignation tendered by the Petitioner from the
post of 'Director', it is submitted that it was subsequent to the transaction
in question and also subsequent to the issuance of post dated cheques.
Moreover, the alleged resignation is also a disputed fact as there is every
reason to believe that it was ante-dated. The copy of the Resolution
passed by Accused No.1 - Company accepting her resignation, is not
produced on record. Hence, according to learned counsel for Respondent
No.1, in the absence of any uncontrovertable and unimpeachable
evidence produced on record to prove that, at the relevant time, when the
loan transaction took place, or, when the disputed cheque was issued, the
Petitioner was not the Director of Accused No.1 - Company, the process
issued against her by the Trial Court cannot be quashed at the threshold
itself. In support of his submissions, learned counsel for Respondent No.1
has also relied upon various authorities, mainly, that of the latest decision
of the Apex Court in Gunmala Sales Private Ltd. Vs. Anu Mehta, AIR
2015 SC 1072.
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11. Having heard learned counsel for both the parties, it has to be
stated that the law relating to the question involved in this Writ Petition is
no more res integra. As Section 138 of Negotiable Instruments Act has
converted civil liability for dishonour of cheque into penal liability and
Section 141 of the Negotiable Instruments Act casts vicarious liability on
the Director of the Company, how to deal with the said liability has always
been a vexed question and has engaged the attention of the higher
Courts since its enactment. As a result, there is plethora of case law on
the point, as to whether mere assertion made in the complaint that the
said Director, at the relevant time, was in-charge of and responsible for
the conduct and day-to-day business of the Company, is sufficient or not
is debated time and again. These days the Courts have also to deal with
one more aspect as to the loop-hole found out by the Directors of
resigning from the directorship, in order to avoid this liability. Therefore,
the second question which has engaged the attention of the Courts is, as
to whether the Director, who has resigned, can be prosecuted after his
resignation has been accepted by the Board of the Directors of the
Company? Deciding this question, at the stage when the process issued
against such Director is requested to be quashed, has however become
more complex as it involves factual aspects as to whether the fact of
resignation is undisputed or challenged on the count that the resignation
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is not given on the date on which it is alleged to be tendered. The High
Court, therefore, in the writ jurisdiction, is also called upon to enter into the
questions, whether the resignation is ante-dated?; whether the letter of
resignation simplicitor can constitute an uncontrovertible or
unimpeachable evidence so as to quash the process issued against the
concerned Director? The Court is, therefore, also required to consider
other factual aspects, like, when Form No.32 was tendered to Registrar of
Companies, whether Resolution of the Board of Directors accepting the
resignation was passed and the Annual Return filed by the concerned
Company. The instant case involves all these factual aspects.
12. Thus, the necessary questions posed before this Court in this
Petition for deciding the question whether process issued against the
Petitioner by the Trial Court is just, legal and correct, are two, firstly,
whether the Director can be prosecuted on the bald assertions made in
the complaint that, at the relevant time, when the offence was committed,
he or she was in-charge of and responsible for the conduct and day-to-
day business of Accused No.1-Company?, and, secondly, whether
Petitioner-Director, who has allegedly resigned before the cheque came to
be dishonoured, can be prosecuted after her resignation has been
accepted by the Board of Directors of Accused No.1-Company?.
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13. In order to answer these two questions, it would be enlightening to
reproduce the provisions of Section 141 of Negotiable Instruments Act,
which read as follows :-
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 purpose of this section
(a) "company" means any body corporate and
includes a firm or other association of individuals;
and
(b) "director", in relating to a firm, means a partner in
the firm.
14. The Apex Court has occasion to deal with Section 141 of the
Negotiable Instruments Act on any number of occasions, its landmark
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decision being in the case of SMS Pharmaceuticals Limited Vs. Neeta
Bhalla & Anr., (2005) 8 SCC 89, which still holds the ground. As per the
law laid down in this decision, there has to be specific averments in the
complaint that the person, who is sought to be made liable, was in-charge
of and responsible to the Company for the conduct of the business of the
Company. It was held therein that, there has to be specific averments to
that effect, as a matter of fact, as there is no deemed liability of Director in
such cases. At the same time, it is not incumbent on the Complainant to
elaborate in the complaint the role played by each of the Directors in the
transaction forming the subject matter of the complaint, as the individual
role of the Director is exclusively within the realm of internal management
of the Company. At the initial stage of the complaint, therefore, it would be
unreasonable to expect the Complainant to elaborate specific role played
by the Director in the transaction forming the subject matter of the
complaint.
15. The Apex Court has, in its latest decision of Gunmala Sales
Private Ltd. (Supra), again taken the review of its all earlier Judgments,
including that of SMS Pharmaceuticals Ltd. (Supra); K.K. Ahuja Vs.
V.K. Arora & Anr., (2009) 10 SCC 48; National Small Industries
Corporation Limited Vs. Harmeet Singh Paintal & Anr., (2010) 3 SCC
330; N. Rangachari Vs. Bharat Sanchar Nigam Ltd., (2007) 5 SCC 108,
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and so many of its earlier decisions and was pleased to summarize its
conclusions as follows :-
33. We may summarize our conclusions as follows :
(a) Once in a complaint filed under Section 138 read
with Section 141 of the N.I. Act the basic averment
is made that the Director was in-charge of and
responsible for the conduct of the business of the
company at the relevant time when the offence was
committed, the Magistrate can issue process
against such Director;
(b) If a petition is filed under Section 482 of the Code
for quashing of such a complaint by the Director, the
High Court may, in the facts of a particular case, on
an overall reading of the complaint, refuse to quash
the complaint because the complaint contains the
basic averment which is sufficient to make out a
case against the Director.
(c) In the facts of a given case, on an overall reading of
the complaint, the High Court may, despite the
presence of the basic averment, quash the
complaint because of the absence of more
particulars about role of the Director in the
complaint. It may do so having come across some
unimpeachable, uncontrovertible evidence, which is
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beyond suspicion or doubt or totally acceptable
circumstances which may clearly indicate that the
Director could not have been concerned with the
issuance of cheques and asking him to stand the
trial would be abuse of the process of the court.
Despite the presence of basic averment, it may
come to a conclusion that no case is made out
against the Director. Take for instance a case of a
Director suffering from a terminal illness, who was
bedridden at the relevant time or a Director who had
resigned long before issuance of cheques. In such
cases, if the High Court is convinced that
prosecuting such a Director is merely an arm-
twisting tactics, the High Court may quash the
proceedings. It bears repetition to state that to
establish such case, unimpeachable,
uncontrovertible evidence, which is beyond
suspicion or doubt or some totally acceptable
circumstances, will have to be brought to the notice
of the High Court. Such cases may be few and far
between, but the possibility of such a case being
there cannot be ruled out. In the absence of such
evidence or circumstances, complaint cannot be
quashed;
(d) No restriction can be placed on the High Court's
powers under Section 482 of the Code. The High
Court always uses and must use this power
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sparingly and with great circumspection to prevent,
inter alia, the abuse of the process of the Court.
There are no fixed formula to be followed by the
High Court in this regard and the exercise of this
power depends upon the facts and circumstances of
each case. The High Court at that stage does not
conduct a mini trial or roving inquiry, but nothing
prevents it from taking unimpeachable evidence or
totally acceptable circumstances into account which
may lead it to conclude that no trial is necessary qua
a particular Director."
16. In this legal back-drop, if one considers the averments in the
complaint of the present case, they are in para No.2 of the complaint, to
the effect that, "Accused Nos.3 and 4 viz. Mr. Pramod Dave and Mrs. Lata
Pramod Dave are Directors of the Accused No.1 Company. They were, as
directed and instructed by Mr. Vinod Kumar Chaturvedi, authorized to sign
and execute documents, loan agreement, pledge agreement, demand
promissory note and such other documents, which were required for the
purpose of taking ICD from Complainant Company and to do all such
acts, deeds and things as may be considered necessary in this regard
and also the Accused No.3 viz Mr. Pramod Dave is the signatory of the
dishonoured cheque. Mr. Vinod Kumar Chaturvedi and Mr. Pramod Dave
and Mrs. Lata Pramod Dave are the persons who have actively
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participated in the negotiation and or execution of documents with the
Complainant Company and their officials in respect of loan transaction.
Hence the Accused Nos.2 to 4 were in charge of and responsible for the
conduct of the business at relevant time when the offence was committed
by the Accused. They are responsible for the issuance of the cheque
which is subject matter of the present complaint and so also for their
dishonour. They failed and neglected to exercise enough care and caution
to ensure that the cheque issued by the Accused Company in discharge
of legally enforceable debts / liability are honoured upon being presented
for encashment by the Complainant and hence they are liable for their
prosecution under Section 138 with the aid of Section 141 of the
Negotiable Instruments Act, 1881, as amended."
17. Thus, a cursory glance to the averments made in the complaint vis-
a-vis the law laid down by the Apex Court in Clauses (a) and (b) of Para
No.33 of its conclusion, makes it clear that those averments are sufficient
for the Magistrate to issue process against the Petitioner. Therefore, at
this stage, no fault can be found in the order passed by the Magistrate of
issuing process against the Petitioner, as the Magistrate was justified in
doing so. Hence, as on overall reading of the complaint, those averments
are sufficient to make out case against the Petitioner, this Court should,
as held by the Apex Court in the case of Gunmala Sales Private Ltd.
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(Supra), refuse to quash the complaint under Section 482 of Cr.P.C.
18. In view of clause (c) of Para 33 of the Apex Court Judgment, this
Court may, despite presence of the basic averments, quash the complaint,
if it comes across some unimpeachable and uncontrovertible evidence,
which is beyond suspicion or doubt or totally acceptable circumstances
which may clearly indicate that the Petitioner could not have been
concerned with the issuance of cheques and asking her to stand the trial
would be abuse of the process of the Court. Like, for instance, a case of a
Director suffering from a terminal illness, who was bed-ridden at the
relevant time or a Director who had resigned long before issuance of
cheques. However, as emphasized by the Apex Court, such circumstance
must be established on the basis of unimpeachable and uncontrovertible
evidence, which is beyond suspicion or doubt. Thus, according to Apex
Court, though there is no restriction on the High Court's powers under
Section 482 of Cr.P.C., those powers are always required to be used
sparingly and with great circumspection to prevent, inter alia, the abuse of
the process of the Court.
19. Here in the case, the Petitioner is asking this Court to quash the
process issued against her on the ground that, on the date when the
cheque in question was presented to the Bank and came to be
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dishonoured, she was no more the Director of the Company as she has
already resigned from the Company. According to Petitioner, she has
tendered her resignation on 1st January 2013 and it was received by the
Company on the same date. She has also produced on record copy of her
resignation letter, Annual Return and Form-32 to substantiate her case
that she has tendered her resignation w.e.f. 1 st January 2013; it was
accepted by the Company and accordingly given effect to by the Registrar
of Companies.
20. If the fact of her tendering the resignation was not disputed and
there was uncontrovertible and unimpeachable evidence on record to
prima facie prove that she has actually tendered the resignation on the
date on which it was given i.e. 1st January 2013, then, as held in the
above said authority of Gunmala Sales Private Ltd. (Supra), it was easy
for this Court to exercise its powers under Section 482 of Cr.P.C. to quash
the process issued against her. Unfortunately, however, this fact is
seriously disputed by learned counsel for Respondent No.1 and in my
considered opinion, rightly so, because, though her resignation letter
apparently bears the date 1st January 2013 and it is also alleged to be
received by the Company on 1st January 2013, the other documents
produced on record, prima facie, go to prove that it was not tendered
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actually on that day but subsequent thereto. Just in order to escape from
the clutches of Section 141 of Negotiable Instruments Act, it is shown
ante-dated. It is pertinent to note that, if Petitioner had really tendered her
resignation on 1st January 2013 itself, on the receipt of the statutory
demand notice dated 4th April 2013 issued by Respondent No.1, she
would have immediately replied to it bringing on record the fact that she
has already resigned from the Company and hence no more liable for
prosecution.
21. It is also pertinent to note that, none of the Accused, even the
Accused No.1-Company also, replied to the statutory demand notice
bringing the fact of her resignation to the notice of Respondent No.1. It is
also worth to remember that Accused No.3 Pramod Dave, is her husband
and also the Director of the Company. Therefore, the act of her alleged
resignation was bound to be within his knowledge and knowledge of their
Company. If she had really resigned on 1st January 2013, they would have
replied to the statutory demand notice bringing this fact on record.
However, none of them have done so, which makes it necessary to draw
an inference that, even till April, 2013, when the statutory demand notice
was issued, there was no such resignation of Petitioner on record, nor it
was acted upon.
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22. Further it is pertinent to note that the summons of the complaint was
issued to the Petitioner on the address of Accused No.1, being the
Director of the Company, and it is not her case that she has not received it
on the said address. Therefore, on the date of filing of the complaint and
issuance of process against her also, the fact of her alleged resignation
w.e.f. 1st January 2013 was not at all acted upon; the apparent reason
being her resignation letter is ante-dated.
23. Moreover, the own document produced on record by the Petitioner
herself, which is the Receipt G.A.R.7 issued by Ministry of Corporate
Affairs, proves that Form No.32, along with Annual Return, was submitted
to the Registrar of Companies on 22nd August 2013 and not immediately
on the receipt of her alleged resignation in January 2013. In this respect it
is material to note that, though the copy of the Annual Return is produced
on record by the Petitioner, the copy of the Resolution passed by the
Board of Directors of Accused No.1-Company accepting her resignation
letter is not produced on record, to show that it was accepted and acted
upon much before the dishonour of the cheque. It is also worth to note
that Form No.32 was submitted on 22nd August 2013 along with the penal
charges for late submission.
24. Thus, at this prima facie stage, there is no evidence on record,
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which can be called as unimpeachable or uncontrovertible, or any
acceptable circumstances, as laid down by the Apex Court in Gunmala
Sales Private Ltd. (Supra), to quash the process issued against the
Petitioner.
25. Furthermore, there is much substance in the submission advanced
by learned counsel for Respondent No.1 that, the relevant period for
deciding the liability of the Director for the act committed by the Company
is not only when the cheque was dishonoured, but also when the disputed
transaction was entered into, and from time to time thereafter like at the
time of issuance of the cheque in question, presentation of said cheque in
Bank etc. In the instant case, the averments in the complaint go to reveal
that the transaction in question was entered into by Accused No.1 with
Respondent No.1 in the year 2010 itself. It was renewed in 2012 upto
2013. There were totally seven disputed cheques issued by Accused
No.1, as stated in the complaint, which were post-dated. They were
issued at one and same time, though bearing different dates. Out of them,
three cheques are after the alleged date of her resignation, whereas,
three cheques were before the alleged date of her resignation. Out of
those three cheques bearing the date, which is after the date of her
resignation, two were honoured. The third cheque, which is disputed one,
though dated 27th January 2013, it being a post-dated cheque, it has to be
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inferred that it was issued along with six other cheques and the first post-
dated cheque is dated 27th September 2012; therefore, necessarily
implying that, when these post-dated cheques, including the dispute
cheque, were issued, Petitioner was very much the Director of the
Company. Therefore, from this angle also, the Petitioner cannot get reed
of her liability.
26. The offence under Section 138 of Negotiable Instruments Act may
get completed only on expiration of fifteen days from the receipt of the
statutory demand notice. However, it consists of various acts and
constituents that give rise to the commission of offence. Some of those
acts are the disputed transaction, the issuance of the cheque, the
dishonour of the cheque by the Bank and, lastly, the issuance of notice.
The dates of all these acts are relevant, as these acts cannot be
separated from one another. They together constitute the offence under
Section 138 of Negotiable Instruments Act. It is the combination of all
these acts, which gives rise to the commission of the offence under the
said Section. Therefore, if the relevant date for attracting vicarious liability
of the Director under Section 141 of the Negotiable Instruments Act is, "at
the time the offence was committed", then, as the offence of Section 138
of Negotiable Instruments Act comprises of all these essential acts,
majority of these acts in the present case, like the transaction in question
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and issuance of cheques took place when the Petitioner was very much
Director of the Company. Hence, she cannot escape of the liability from
this angle also. In this view of the matter, it cannot be said that the
Petitioner was not the Director when the offence was committed. Once
this is so, she cannot avoid facing prosecution only on the ground of her
having ceased to be the Director, when the last few acts of presentation of
the cheque to the Bank and its dishonour took place.
27. Thus, when the correctness of the contents of Form No.32 that the
Petitioner has tendered her resignation on 1st January 2013 is disputed
and when averments in the complaint are, prima facie, sufficient to prove
involvement of the Petitioner in the alleged offence, the inherent powers of
the High Court under Section 482 of Cr.P.C., which are to be invoked
sparingly and in exceptional circumstances, could not be exercised in the
instant case to quash the prosecution initiated against the Petitioner.
28. As to the authority relied upon by learned counsel for the Petitioner
in Saumil Dilip Mehta Vs. State of Maharashtra & Ors., AIR 2002 Bom.
194, it pertains to Section 303(2) of the Companies Act, wherein the
resignation was accepted by the Board of Directors and there was
evidence to that effect. Therefore, it was held that, filing of Form No.32
and completing other requirements of Company Law is the duty of the
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Company Secretary and the retired Director is not liable for liability
incurred by the Company after the date of acceptance of his resignation.
In the instant case, there is no uncontrovertible evidence on record to
show the acceptance of the Petitioner's resignation by the Company on
the date on which it is alleged to be tendered.
29. Even as to the authority of Naveen Kumar Aggarwal Vs. M/s.
Dove Creation Pvt. Ltd., 2016 ALL MR (Cri) JOURNAL 113, of Punjab &
Haryana High Court, there was evidence to prove that the resignation of
the Director was accepted by the Board of Directors, though there was
delay in communication to the Registrar of Companies. Here in the case,
no such evidence is produced on record, which can be called as
unimpeachable to prove that the resignation of the Petitioner was
accepted on the date as alleged by her.
30. The other two authorities of Amit Mohan Inder Mohan Sharma Vs.
Mamta Agency & Ors., 2007 (3) Mh.L.J. 198, and Pooja Ravinder
Devidasani Vs. State of Maharashtra, MANU/SC/1177/2014, are also
relating to the facts of those particular cases and hence they cannot be
made applicable to the instant case.
31. Therefore, having regard to all the facts, circumstances and
relevant provisions of law on record, in the light of the submissions
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advanced by the learned counsel for the parties, this Court is of the
considered opinion that, the Petitioner has failed to make out the case for
quashing of process issued against her for the offence punishable under
Section 138 read with Section 141 of Negotiable Instruments Act.
32. The Petition is, therefore, dismissed. Rule is discharged
accordingly.
33. However, it is made expressly clear that whatever observations
made here-in-above as to the merits of the case are only for the purpose
of deciding this Writ Petition and the Trial Court is not to be influenced by
them in any way. All the contentions of the parties are expressly kept
open.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
WP-3188-14.doc
