Ranjit Chaudhary vs Sanjeev Thareja & Sons & Ors.
2008 Latest Caselaw 1592 Del

*       HIGH COURT OF DELHI AT NEW DELHI

+        Crl. M. C. No. 3416/2007 & Crl.
         M.A. No. 12326/2007


                      Date of decision : 9th September, 2008

#       RANJIT CHAUDHARY                  ...... Petitioner
!                Through : Mr. S.K. Sharma, Adv.


                              Versus


$       SANJEEV THAREJA & SONS & ORS.
                                      ..... Respondents
^                Through : Mr. Y.K. Aggarwal, Adv. for
                           R-1

%
        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?

     (3) Whether the judgment should be reported
         in the Digest ?

                          JUDGMENT

ARUNA SURESH, J. (Oral)

1. By way of this petition, petitioner Sh. Ranjit

Choudhary seeks quashing of Complaint Case no.

94/1/03 under Section 138 of the Negotiable

Instruments Act titled "Sanjeev Thareja v. Bombay

Bazaar" and proceedings conducted therein which is

pending adjudication in the court of learned

Metropolitan Magistrate Ms. Navita Kumari.

2. Epigrammatically, on 10.12.2002 a cheque bearing

no. 168979 was issued by M/s Bombay Bazaar,

respondent no. 2 company drawn on Punjab and

Sindh Bank for a sum of Rs. 35,531/- in favour of the

complainant, respondent no. 1 Sanjeev Thareja and

Sons (HUF), in lieu of the commission payable to the

complainant in terms of an agreement inter-se them

of establishing distribution centre at Lajpat Nagar.

Complainant presented the above said cheque to its

banker who informed the complainant that the cheque

stood dishonoured for „Funds Insufficient‟.

Complainant sent a legal notice dated 11.2.2003 to

the respondent no. 2 company as well as the

petitioner and respondent nos. 3 to 9 who were the

directors of the respondent no. 2 company calling

upon them to pay the amount of the bounced cheque.

The accused persons sent a reply to the said legal

notice. Consequently complainant filed a complaint

somewhere in May 2003. The trial court took

cognizance of the offences and summoned the

accused persons including the petitioner. On

6.3.2007 learned Metropolitan Magistrate issued non-

bailable warrants against the petitioner and other

accused persons. Hence, the present petition.

3. It is submitted by the counsel for the petitioner that

the cheque in question was signed and issued by

respondent no. 4 Vijay Tata who was the director/CEO

of the respondent no. 2 company M/s Bombay Bazaar.

Also the petitioner had sent a reply on 25.2.2003 to

the advocate of respondent no. 1 company against the

legal notice of demand of payment dated 11.2.2003 in

which it was stated that petitioner 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

petitioner has not been served with the notice of the

case and it is only recently that petitioner came to

know of the non-bailable warrants issued against him

by the trial court.

4. It is further argued by the counsel for the petitioner

that the date on which the cheque was issued that is

10.12.2002; the petitioner had already resigned on

14.9.2002. Even during his tenure as a director, he

was not involved in the day to day functioning of the

company.

5. Learned counsel for respondent no. 1 controverted

the submissions advanced by the counsel for the

petitioner by challenging the relevancy and

admissibility of Form-32 produced by the petitioner,

Form-32 being prepared by the company was not a

public document. In support of his contentions

respondent has relied on the Budhamal Bhansali @

B. Bhansali v. The State of West Bengal and Anr.

2008 (2) JCC (NI) 180.

6. Reply dated 25.2.2003 sent to the complainant by the

petitioner mentions that there was shuffling in the

constitution of directors of the company and

respondent no. 4 took over the charge of the company

whereas petitioner had resigned with effect from

14.9.2002. He also stated in the reply letter that the

cheque no. 168979 dated 10.12.2002 was issued by

respondent no. 4 Vijay Tata, Director of Bombay

Bazaar after the resignation of the petitioner. Form

no. 32 filed with the ROC Mumbai gave the status of

the petitioner in the respondent no. 2 company that

he had resigned on 14.9.2002.

7. It is clear that petitioner had resigned long before the

cheque was issued and the production of Form-32

filed with the Registrar of the Companies by the

petitioner to establish his resignation is also sufficient

for this petition to succeed. The respondent has not

given any evidence on record to show that the

petitioner was involved in the functioning and conduct

of the respondent No. 2 company any time either after

the resignation on 14.9.2002 or till after the cheque

was issued.

8. It is pertinent to mention that Form-32 was submitted

to the Registrar of Companies by respondent no. 4

Vijay Tata as director of the respondent no. 2

company. Certified copy of Form-32 is a public

document as per section 74 of the Evidence Act and

the Court has to presume as to the genuineness of

such certified copies as per section 79 of the evidence

act when no counter credential is projected by the

complainant.

9. 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

it 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.

10. 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.

11. 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.

12. In light of the above considered precedents by this

Court the judgment of Budhamal Bhansali @ B.

Bhansali v. The State of West Bengal and Anr.

(supra) cannot be considered as a good law.

13. In the present case Form-32 was filed with the

Registrar of Companies before the cheque was even

issued. The cheque pertaining to the case was drawn

between the period 10.12.2002 to 29.1.2003 and

during that period, the petitioner did not function as

Chairman or Director of the accused company and he

was 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 a

person ceased to be the director of the company.

Criminal liability cannot be fastened on the petitioner

after he ceased to be director of the company.

14. Hence in light of the facts and circumstances of the

case, the petition is allowed. The complaint case no.

94/1/03 only against the petitioner as well as the non-

bailable warrants dated 6.3.2007 issued only against

him are hereby quashed.

15. Attested copy of the order be sent to the trial court.

ARUNA SURESH (JUDGE) September 09, 2008 jk