2010 (2) TMI 1290 - HC - Indian Laws

Summary

Issues Involved:
1. Quashing of criminal complaint u/s 138 of the Negotiable Instruments Act.
2. Validity of the petitioner's resignation as Director.
3. Vicarious liability of the petitioner.
4. Consideration of Form-32 as a public document.
5. Applicability of precedents and legal principles.

Summary:

1. Quashing of Criminal Complaint u/s 138 of the Negotiable Instruments Act:
The petition was filed u/s 482 of the Code of Criminal Procedure to quash a criminal complaint filed by the respondent u/s 138 of the Negotiable Instruments Act. The complaint alleged that the accused company, Vijay Remedies Limited, issued a cheque which was dishonored for want of funds, and despite a legal notice, the payment was not made.

2. Validity of the Petitioner's Resignation as Director:
The petitioner contended that he resigned as Director of Vijay Remedies Limited on 29th May 1997, prior to the issuance of the cheque dated 15th July 1997. The petitioner provided a certified copy of Form-32 from the Registrar of Companies to support his claim. The court noted that since the petitioner was not a Director on the date the cheque was issued, he could not ensure its encashment or comply with the demand notice.

3. Vicarious Liability of the Petitioner:
The court emphasized the five essential ingredients of an offence u/s 138 of the Negotiable Instruments Act. It was held that the petitioner could not be held vicariously liable as he was not a Director at the time the offence was committed. The court referred to precedents, including "Shri Raj Chawla Vs. SEBI" and "K.K. Ahuja vs. V.K. Vora," to support this view.

4. Consideration of Form-32 as a Public Document:
The court addressed the complainant's argument that Form-32 was a defense that should not be considered at the initial stage. It was held that an authentic public document like Form-32, whose genuineness is not disputed, can be considered in a petition u/s 482 of the Code of Criminal Procedure. The court cited decisions from the Hon'ble Supreme Court, including "All Carogo Movers (I) Pvt. Ltd. Vs. Dhanesh Badarmal Jain" and "Minakshi Bala v. Sudhir Kumar," to substantiate this point.

5. Applicability of Precedents and Legal Principles:
The court distinguished the present case from "Malwa Cotton & Spinning Mills Limited Vs. Virsa Singh Sidhu" and "DCM Financial Services Limited Vs. J.N. Sareen," noting that the petitioner had resigned before the cheque was issued and dishonored. The court concluded that the petitioner, having resigned before the offence was committed, could not be held liable unless it was shown that he continued to control the company's affairs.

Conclusion:
The court quashed the summoning of the petitioner as an accused in the criminal complaint and subsequent proceedings related to him. However, the trial court was directed to proceed with the complaint against Vijay Remedies Limited.