2014 (10) TMI 1084 - HC - Indian Laws

Dishonour of cheque - liability of petitioners being former directors of a company u/s 138 of the Negotiable Instruments Act 1881 for cheques issued after their resignation from the company had been accepted - HELD THAT - The present petitioners had resigned on 10. 10. 2011 and their resignations have been accepted by a Resolution passed by the Board of Directors on 18. 11. 2011. The mere fact that Company Secretary has mentioned the date of meeting wrongly as 10. 10. 2011 instead of 18. 11. 2011 is no ground to say that a false record has been prepared. The Directors have resigned from the Directorship and their resignations have been accepted therefore they are not supposed to upload Form No. 32 etc. as per provisions of the Company Act. It is for the Company Secretary to upload the form and if the Company Secretary commits any mistake the present petitioners are not responsible for that - when the cheques were issued by the Company on 21. 06. 2012 the present petitioners were not the Directors and they cannot be held liable if the cheques in question were bounced. Conclusion - The present petitioners have already resigned and their resignations have already been accepted by the Board of Directors and at the time of issuance of cheques they were not the Directors or dealing with the affairs of the Company therefore they are not liable for the bouncing of the cheques. Petition allowed.

ISSUES PRESENTED and CONSIDERED

The core legal question considered in this judgment was whether the petitioners, former directors of a company, could be held liable under Section 138 of the Negotiable Instruments Act, 1881, for cheques issued after their resignation from the company had been accepted.

ISSUE-WISE DETAILED ANALYSIS

Relevant legal framework and precedents: The central legal framework involves Section 138 of the Negotiable Instruments Act, 1881, which pertains to the dishonor of cheques. The issue also touches upon the procedural aspects under the Companies Act regarding the resignation of directors and the filing of Form No. 32, which is a statutory requirement for notifying the Registrar of Companies about changes in directorship.

Court's interpretation and reasoning: The Court analyzed whether the petitioners could be held responsible for the dishonored cheques when they were no longer directors at the time of issuance. The Court emphasized that the resignation of the petitioners was accepted by the Board of Directors, and the necessary documentation, including the minutes of the meeting and Form No. 32, supported this fact.

Key evidence and findings: The Court examined the original minute book of the company, which confirmed the acceptance of the petitioners' resignations on 18.11.2011, effective from 10.10.2011. This evidence was crucial in establishing that the petitioners were not directors when the cheques were issued on 21.06.2012.

Application of law to facts: The Court applied the principles from various judgments, including those from the Delhi High Court and the Supreme Court, which clarified that the resignation of a director is effective upon communication and acceptance by the board, not contingent upon the filing of Form No. 32. The Court concluded that since the petitioners were not involved with the company's affairs at the time of the cheque issuance, they could not be held liable under Section 138.

Treatment of competing arguments: The respondent argued that the legal notice was issued before the Form No. 32 was uploaded and questioned the authenticity of the resignation acceptance. However, the Court found no evidence of fabrication in the company's records and determined that the responsibility for filing Form No. 32 lay with the company secretary, not the petitioners.

Conclusions: The Court concluded that the petitioners, having resigned and had their resignations accepted before the issuance of the cheques, could not be held liable for the dishonor of the cheques. Therefore, the complaints against them were quashed.

SIGNIFICANT HOLDINGS

The Court held that directors who have resigned and whose resignations have been accepted are not liable under Section 138 of the Negotiable Instruments Act for cheques issued after their resignation. The Court emphasized that the duty to file Form No. 32 lies with the company secretary and not the individual directors. The Court cited several precedents, including the Supreme Court's decision in Harshendra Kumar D. vs. Rebatilata Koley, reinforcing that liability under Section 138 requires involvement with the company's affairs at the time of the offence.

The final determination was that the complaints and orders summoning the petitioners were quashed, as the petitioners were not directors at the time the cheques were issued and therefore not liable for the alleged offence.

← Previous Next →