2022 (7) TMI 1171 - HC - Indian Laws

Dishonor of Cheque - role of the accused/petitioners not clearly mentioned in the complaint - impleadment of petitioner in the complaint who had already resigned in 2009 and 2010 - issuance of cheque by the petitioners or not - legal notices not sent to the petitioners as well - HELD THAT - It is settled law that in a complaint under Section 138/141/142 of the NI Act, the specific roles of the accused must be delineated in the complaint. It is generally mentioned in the complaint filed by the respondent that the accused No. 2 to 6 including the petitioners herein are jointly and severally liable for the offences. It is nowhere pleaded that the cheque that was dishonoured had been issued by any of the petitioners. The Form-32 produced before the learned Trial Court was by the complainant/respondent himself and he did not dispute the genuineness of that Form that he had placed on the record. When the document was not disputed and it is a form that is filed as a statutory requirement entailing consequences for false information being furnished to the Registrar of Companies, on the mere say so of the complainant that the present petitioners were still active Directors, the learned Trial Court chose to reject their plea for discharge. It was of the view that without the certified copies, the undisputed documents could not be accepted. The proof that they would have led as evidence would be the certified copies of the Form-32 filed before the ROC. They have now filed the certified copies before this Court. In fact, the learned Trial Court could have called for the same. The certified copy of Form-32 is of sterling quality and can be considered by this Court at this stage. It is clear that once the petitioners had resigned way back in 2009 and 2010 respectively, they could not have been responsible either for the issuance of the cheque dated 25th April, 2016 nor for its dishonor in April and May, 2016. They could not have been impleaded as accused in the complaint. The absence of a legal notice to these petitioners would suggest that the respondent was aware of the fact that they have resigned from the company long ago. Petition allowed.

Summary

Issues:
Summoning order faulty due to legal notice and resignation of petitioners.

Analysis:
The petitioners, as directors of the accused company, were summoned to face trial under Section 138 of the Negotiable Instruments Act. The summoning order was challenged on two grounds. Firstly, the legal notice was sent only to specific accused persons, excluding the petitioners. Secondly, the petitioners had resigned from the company before the alleged offense, which was not considered by the Trial Court. The Trial Court dismissed the plea for discharge, stating that evidence was required to prove the resignation.

The High Court emphasized that in a complaint under the NI Act, the specific roles of the accused must be clearly stated. The complaint failed to mention that the dishonored cheque was issued by the petitioners, who had resigned before the incident. The Trial Court's reasoning was questioned as the complainant did not dispute the genuineness of the Form-32, which showed the petitioners' resignation. The Court noted that the certified copies of Form-32 were now filed, confirming the resignations.

The High Court found the certified copies of Form-32 to be of high quality and conclusive evidence of the petitioners' resignation. As the petitioners had resigned years before the offense, they could not be held responsible. The absence of a legal notice to the petitioners indicated that the respondent was aware of their resignation. Consequently, the petition was allowed, and the proceedings against the petitioners were quashed.

The High Court directed the Trial Court to be informed electronically about the judgment and ordered the immediate upload of the judgment on the website.