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2021 (10) TMI 1089 - HC - Companies LawEffective date of Resignation from the post of Managing Director - Compiling Proceedings against the Director / Petitioner for Non-appointment of Woman Director in the company - case of petitioner is that he had resigned from the Directorship in the company with effect from 05.09.2013 and he had no control over the affairs relating to the company thereafter - Section 149 of the Companies Act, 2013 - HELD THAT - The Assistant Director, Government of India, Ministry of Corporate Affairs, Chennai had issued summons to the petitioner and others to attend the said office to give evidence and to produce the books of accounts or any other paper in pursuant to the notice dated 17.03.2015. However, the petitioner failed to comply with the same. Thereafter, the respondent, filed a complaint under Section 207(4) of the Companies Act, 2013 against the petitioner and others before the learned Additional Chief Metropolitan Magistrate, chennai to summon and punish them according to law for the default. Two directors in the case of a private company and one director in case of one person company (b) a maximum of fifteen directors, provided that a company may appoint more than 15 directors after passing a sepcial resolution, further as per Sub-Section (2) of the above said section, every company existing on or before the date of commencement of the act shall within one year from such commencement shall comply with the requirement of Sub Section (1), that as per Rule 3 of the companies (Appointment and qualification of Directors) Rule, 2014, every unlisted public company having (a) paid up share capital of one hundred crore rupees or more or(b) turnover of three hundred crore rupees or more, shall appoint atleast one woman director within one year from the commencement of companies Act, 2013 (i.e.) 01.04.2014. As per provisions of Section 172 of the Companies Act, 2013 If a company contravene any of the provisions in this Chapter and for which no specific punishment is provided therein, the company and every officer of the company, who is in default shall be punishable with fine, which shall not be less than fifty thousand but may extend to five lakh rupees. Further, a letter dated 06.04.2016 was addressed by the petitioner to the Registrar of Companies seeking apologize for the delay in response and stated that he was ceased to be a Director of the Company on 05.09.2013 and that he was not in touch with the said company - an examination of the record would show that there is a receipt of G.A.R.7 from the Ministry of Corporate Affairs from one Tanmoy Dey, for a sum of ₹ 7,800/- towards fee for Form DIR-11 and the same would show that the petitioner had resigned from the company on 05.09.2013 and the same was declared by the petitioner by signing the same digitally only on 05.03.2016, which is only after initiation of the present proceedings, however, Form No.DIR-12 is not found in the material produced and that Form 32 has not been filed by the company. In the present case on hand, the petitioner, who had worked as Director in the company had submitted his resignation to the Company on 20.12.2012 and thereafter, the petitioner had submitted his resignation to the Board of Directors of the company on 05.09.2013 with a copy marked to the Regional Office of the Registrar of Companies, Chennai - Even assuming that the petitioner had submitted his resignation to the Registrar of Companies on 05.09.2013, however, the petitioner had filed FORM DIR-11 only belatedly after initiation of the present proceedings and Form DIR-12 has not been filed subsequently by the company. This Court is of the view that the grounds and the submissions raised by the petitioner are purely a matter of evidence and the same cannot be gone into by this Court in the quash petition. It is well settled legal position that only when the allegation made in the complaint do not constitute an offence, for which, the accused is subjected to trial, the complaint could be quashed. In the instant case, the petitioner has not made out any case within the purview of Section 482 Cr.P.C., warranting to quash E.O.C.C.No.299 of 2015 pending on the file of learned Additional Chief Metropolitan Magistrate E.O.-I, Allikulam Moore Market, Chennai - the present Criminal Original petition is hereby dismissed.
Issues Involved:
1. Validity of the petitioner's resignation as Managing Director and Director. 2. Liability under Section 149 of the Companies Act, 2013 for non-appointment of a Woman Director. 3. Liability under Section 172 of the Companies Act, 2013. 4. Compliance with procedural requirements for resignation. 5. Jurisdiction and appropriateness of quashing the complaint under Section 482 Cr.P.C. Issue-wise Detailed Analysis: 1. Validity of the Petitioner's Resignation as Managing Director and Director: The petitioner claimed to have resigned as Managing Director of the company on 20.10.2012 and reiterated his resignation on 05.09.2013. He argued that he had no control over the company's affairs after his resignation and was not responsible for subsequent non-compliance issues. However, the respondent contended that the resignation was effective only upon receipt by the company and that the petitioner remained liable for any offences committed during his tenure as per the records. 2. Liability under Section 149 of the Companies Act, 2013 for Non-Appointment of a Woman Director: The respondent filed a complaint under Section 149 of the Companies Act, 2013, asserting that the company failed to appoint a Woman Director by the due date of 01.04.2015. The petitioner argued that he had resigned before the enforcement of the Companies Act, 2013, and thus was not liable. However, the court noted that the petitioner could still be held accountable for offences committed during his tenure, as per the proviso under Section 168 of the Companies Act, 2013. 3. Liability under Section 172 of the Companies Act, 2013: The petitioner was also held liable under Section 172 of the Companies Act, 2013, which imposes fines for contraventions of the Act. The court found that the petitioner had not demonstrated compliance with the necessary procedural requirements to absolve himself of liability. 4. Compliance with Procedural Requirements for Resignation: The petitioner had submitted his resignation to the company and the Registrar of Companies but failed to ensure that the requisite forms (Form DIR-11 and DIR-12) were filed in a timely manner. The court highlighted that the petitioner only filed Form DIR-11 belatedly after the initiation of the present proceedings, and Form DIR-12 was not filed by the company. The court also noted that the petitioner had not pursued all available remedies to enforce his resignation. 5. Jurisdiction and Appropriateness of Quashing the Complaint under Section 482 Cr.P.C.: The court emphasized that the grounds raised by the petitioner were matters of evidence that could not be adjudicated in a quash petition. It reiterated the legal principle that complaints should only be quashed when the allegations do not constitute an offence. The court concluded that the petitioner had not made out a case within the purview of Section 482 Cr.P.C. to warrant quashing the complaint. Conclusion: The court dismissed the petition to quash E.O.C.C.No.299 of 2015, allowing the petitioner to seek relief by filing a petition before the trial court for dispensing with his appearance. The court directed the trial court to pass appropriate orders on such an application. Consequently, the connected miscellaneous petition was also closed.
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