Ranjit Chaudhary & Anr. vs Mohi Khan
2008 Latest Caselaw 2242 Del

                "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

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

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,

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.

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

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-

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.

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.