Dipesh J Thacker vs M/S Smartsync Innovations Pvt Ltd
2022 Latest Caselaw 8328 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 08TH DAY OF JUNE, 2022

                         BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.9492 OF 2021

                           C/W

             CRIMINAL PETITION No.3259 OF 2021

IN CRIMINAL PETITION No.9492 OF 2021

BETWEEN:

DIPESH J. THACKER
S/O JITENDRA V. THACKER,
AGED ABOUT 36 YEARS
R/O. FLAT NO. 503
LAXMI APARTMENT
SHASHTRI NAGAR WEST
NEAR JAIN MANDIR
DHANBAD, JHARKHAND - 826 001.
                                                 ... PETITIONER
(BY SRI V.BHARATH KUMAR, ADVOCATE)

AND:

M/S SMARTSYNC INNOVATIONS PVT. LTD.,
(COMPANY INCORPORATED UNDER
PROVISIONS OF COMPANIES ACT, 2013)
HAVING OFFICE AT NO. 37
KARTHIK MANSION
NAGARTHPET MAIN ROAD
BENGALURU - 560 008
REP. BY ITS DIRECTOR,
MR. ANKIT JAIN.                        ... RESPONDENT
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(BY SRI S.SUSHANTVENKATESH PAI, ADVOCATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO a) QUASH THE COMPLAINT PREFERRED BY
THE RESPONDENT IN MATTER BEARING P.C.R.NO.50181/2021
AND CURRENTLY RENUMBERED AS C.C.NO.51550/2021, PENDING
ON THE FILE OF XIV ADDL.C.M.M., MAYO HALL UNIT, BENGALURU
AS AGAINST THE PETITIONER HEREIN ALONE, WHO IS ARRAIGNED
AS ACCUSED NO.3 FOR THE ALLEGED OFFENCES P/U/S 138 OF
N.I. ACT (ANNEXED VIDE ANNEXURE-A) AND ETC.,

IN CRIMINAL PETITION No.3259 OF 2021

BETWEEN:

DIPESH J. THACKER
S/O JITENDRA V. THACKER
AGE ABOUT 36 YEARS
R/O FLAT NO.503, LAXMI APARTMENT
SHASTRI NAGAR WEST, NEAR JAIN MANDIR
DHANBAD, JHARKHAND - 826 001.
                                             ... PETITIONER
(BY SRI V.BHARATH KUMAR, ADVOCATE)

AND:

M/S QUESS CORP. LIMITED
HAVING ITS OFFICE AT:
NO.3/3/2, BELLANDUR GATE
SARJAPUR ROAD
BENGALURU - 560 103.

REPRESENTED BY
ITS AUTHORIZED SIGNATORY,
MADHUSUDAN DAMODARAN,
                                            ... RESPONDENT

(RESPONDENT SERVED AND UNREPRESENTED)
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE COMPLAINT PREFERRED BY
THE RESPONDENT IN MATTER BEARING P.C.R.NO.8619/2020 AND
CURRENTLY RENUMBERED AS C.C.NO.132/2021, PENDING ON
THE FILE OF THE HONBLE XXV ADDL. CHIEF METROPOLITAN
MAGISTRATE, BENGALURU, AS AGAINST THE PETITIONER HEREIN
ALONE. (ANNEXED VIDE ANNEXURE-A) AND ETC.,

     THESE CRIMINAL PETITIONS COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

IN CRL.P.No.9492/2021:

The petitioner is before this Court calling in question the

proceedings in C.C.No.51550/2021 registered for offences

punishable under Section 138 of the Negotiable Instruments

Act.

2. Heard Sri.V.Bharath Kumar, learned counsel appearing

for petitioner and Sri.S.Sushantvenkatesh Pai, learned counsel

appearing for respondent.

3. Petitioner is accused No.3. Petitioner at the relevant

point in time was a Director of accused No.1-M/s.Wardwiz India

Solutions Pvt. Ltd., ('Company' for short) incorporated under the

Companies Act, 2013 and accused No.2 is also the Director of

the Company. The Company and the complainant entered into

an agreement for providing of services with regard to installation

of antivirus to which the petitioner is the signatory in the

capacity of being a Director, at the time when an agreement was

entered into between the parties. The said agreement which

bears the signature of the petitioner as its Director was entered

into on 17.08.2018. The petitioner after the agreement so

entered submits his resignation as Director of the company on

04.7.2019 and the same is accepted. The documents before the

Registrar of Companies depicts that the petitioner has resigned

from the post of Director with effect from 04.07.2019.

4. The allegation now is, after the resignation of the

petitioner as a Director of the Company, accused No.1 has

issued certain cheques which when presented have been

dishonoured with an endorsement "payment stopped by drawer".

The complainant on the cheques being returned, issued a notice

to the Company and to the petitioner in terms of the Act. The

petitioner did not reply to the said notice while the other

Director replied without indicating that the petitioner had

resigned from the Directorship of the Company. The

complainant initiates proceedings under Section 138 of the

N.I.Act arraigning the Directors of the Company as accused. The

petitioner is accused No.3. At that juncture, the petitioner

knocks the doors of this Court in the subject petition.

5. Learned counsel appearing for the petitioner would

contend that the petitioner having resigned as Director of the

Company cannot be hauled into these proceedings as he is

neither the signatory to the cheque nor was present in the

deliberations prior to issuance of the cheque, as he had resigned

and would place reliance upon the judgment of the Apex Court

in the case of HARSHENDRA KUMAR .D. v. REBATILATA

KOLEY AND OTHERS reported in (2011)3 SCC 351 to contend

that the proceedings under the N.I.Act against the Ex-Director

cannot be maintained.

6. On the other hand, learned counsel appearing for the

respondent would vehemently refute these submissions to

contend that the petitioner is the signatory to the agreement

that was entered into between the complainant and the

Company wherein he had represented the Company. The

cheques are issued, albeit, by the other Director, but they are in

furtherance of the agreement to which the petitioner was also a

privy as he had signed the documents. The petitioner did not

even reply to the notices that were sent when the cheques were

dishonoured on account of 'stop payment' when they were

presented and would submit that the resignation of the

petitioner or otherwise is a matter of trial in which the petitioner

will have to come out clean, as it is not a case that the petitioner

was not at all aware of the transaction that has taken place

between the Company and the complainant. He would place

reliance upon the following judgments of the Apex Court:

1. SUNIL TODI v. STATE OF GUJARAJ - 2021 SCC ONLINE

SC 1174;

2. N.RANGACHARI v. BHARAT SANCHAR NIGAM LTD. -

(2007)5 SCC 108;

3. A.S.PATTABIRAMAN v. SHOBHA S. HALDI - 2004 SCC

ONLINE KAR 575;

4. PRUDENTIAL ENGINEERS/BUILDERS & DEVELOPERS,

BANGALORE v. KUSKOOR BHARATH RAM - 2003 SCC

ONLINE KAR 625.

7. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and perused the material on record.

8. The afore-narrated facts are not in dispute. The

petitioner in the capacity of being a Director of the Company

M/s.Wardwiz India Solutions Pvt. Ltd., had signed the

agreement that was entered into between accused No.1 and the

respondent-complainant. The agreement was signed on

17.8.2018. Long after execution of the agreement to which the

petitioner was signatory, the petitioner tenders his resignation

as Director of the company with effect from 04.07.2019. This is

accepted and notified in Form No.DIR-11 as per the proviso to

Section 168(1) of the Companies Act, 2013 and Rule 16 of the

Companies (Appointment and Qualification of Directors) Rules,

2014 and in DIR-12 as per the proviso to Sections 7(1)(c), 168

and 170(2) of the Companies Act, 2013 and Rule 17 of the

Companies (Incorporation) Rules 2014 and 8, 15, 18 of the

Companies (Appointment and Qualification of Directors) Rules,

2014. Therefore, Form Nos.DIR-11 and 12 are public

documents. The said documents would indicate the date of

filing of resignation with the Company to be 4.7.2019 and from

that date, the petitioner ceased to be a Director of M/s.Wardwiz

India Solutions Pvt. Ltd.,

9. The admitted fact is, the cheques were issued in the

month of December 2019 and January 2020 not by the

petitioner but by accused No.2, the other Director of the

Company representing accused No.1/Company of which

accused No.2 is the signatory to the instruments involved in the

transaction. Therefore, it becomes an admitted fact that the

petitioner was not a Director of the Company when the cheques

were issued. Therefore, he was an Ex-Director of the Company.

The notices though were issued, the petitioner did not reply to

the notices, ostensibly on the ground that he has nothing to do

with the Company after his resignation. This cannot become a

ground for the complainant to initiate proceedings dragging the

petitioner, notwithstanding him becoming an Ex-Director on the

date of the transaction.

10. The judgments relied on by the learned counsel

appearing for the respondent were all concerning the role of

Directors in a transaction between the two parties where the

Directors were involved in the act of issuance of those cheques

therein. The role of an Ex-Director though in some terms is held

in the case of N.RANGACHARI, much water has flown after the

said judgment of the Apex Court, as the Apex Court in the

subsequent judgment in the case of HARSHENDRA KUMAR .D.

v. REBATILATA KOLEY AND OTHERS1 has clearly held that an

Ex-Director cannot be hauled into criminal proceedings,

(2011)3 SCC 351

particularly, for a proceeding under Section 138 of the N.I.Act.

The Apex Court holds as follows:

"25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents -- which are beyond suspicion or doubt -- placed by the accused, the accusations against him cannot stand, it would be travesty of justice if the accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.

26. Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant's resignation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.

27. As noticed above, the appellant resigned from the post of Director on 2-3-2004. The dishonoured cheques were issued by the Company on 30-4-2004 i.e. much after the appellant had resigned from the post of Director of the Company. The acceptance of the appellant's resignation is duly reflected in the Resolution dated 2-3-2004. Then in the prescribed form (Form 32), the Company informed to the Registrar of Companies on 4-3-2004 about the appellant's resignation. It is not even the case of the complainants that the dishonoured cheques were issued by the appellant. These facts leave no manner of doubt that on the date the offence was committed by the Company, the appellant was not the Director; he had nothing to do with the affairs of the Company. In this view of the matter, if the criminal complaints are allowed to proceed against the appellant, it would result in gross injustice to the appellant and tantamount to an abuse of process of the court."

(Emphasis supplied)

11. In the teeth of the admitted facts, the submission of

the learned counsel appearing for the respondent that the

petitioner will have to come out clean in a trial, after him

producing the documents with regard to resignation is

unacceptable, as those documents without doubt are public

documents, which would clearly demonstrate that the petitioner

has resigned on 4.7.2019. Therefore, those documents being

unimpeachable and of that sterling quality as is held by the

Apex Court in several judgments, the power under Section 482

of the Cr.P.C. is to be exercised in the case at hand and the

proceedings against the petitioner are to be obliterated.

12. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal Petition is allowed.

(ii) Impugned proceedings in C.C.No.51550/2021

pending on the file of the Hon'ble XIV Additional

Chief Metropolitan Magistrate, Mayohall Unit,

Bengaluru stand quashed qua petitioner-accused

No.3.

It is made clear that none of the observations made herein

would bind or influence the proceedings pending against

accused Nos.1 and 2.

IN CRL.P.No.3259/2021:

The petitioner is before this Court calling in question the

proceedings in C.C.No.132/2021 registered for offences

punishable under Section 138 of the Negotiable Instruments Act.

For the reasons rendered in the companion petition

Crl.P.No.9492/2021, this Criminal Petition is allowed and the

proceedings in C.C.No.132/2021 pending on the file of XXV

Additional Chief Metropolitan Magistrate, Bengaluru stand

quashed qua the petitioner.

Sd/-

JUDGE bkp CT:MJ