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TMI Blog2002 (3) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the petitioner resigned as the director of the Leafin India Ltd. (the company) on whose behalf the cheque in question was issued, and since the certificate issued by the Registrar of Companies shows that he ceased to be the director of the company from 6-3-1999, and since the offence of dishonour of cheque was not completed by 6-3-1999 the proceedings against him are liable to be quashed, more so because the company is not made an accused to the proceedings. It is his contention that as per section 141 of the Act, the directors of a company cannot be made liable for an offence under section 138 in respect of the cheques issued for and on behalf of the company, unless the company also is shown as an accused. It is his contention that sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the petitioner along with the petition reads as under : "I am surprised to notice that the cheques issued by the company which has signed by me as 2nd signatory are reported to have been dishonoured. This is an absurd situation. The company is making profit, you are fully incharge of the day-to-day affairs of the company. I am no way connected to the management of the Finances or the day-to-day working of the company. Though you are promising that situation will be rectified by you in few days and all dishonoured cheques will paid in full. I see no improvement. I have already stopped signing the cheques as the 2nd signatory. I do not wish to associate with you or with the board of directors any more as director of the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. The director appointed in his place subsequently can plead that he was not in-charge of the affairs that company when the cheque was drawn and so he cannot be made liable. In the circumstances like this, though the offence under section 138 becomes complete only if payment is not made within 15 days of receipt of the statutory notice, since the director that tendered the resignation could pay the amount covered by the dishonoured cheque and then resign, he cannot escape his liability under section 138 by tendering resignation after receipt of statutory notice of dishonour without making the payment demanded. Since in this case the notice of dishonour was received by the petitioner on 24-2-1999 and he seems to have submitted his resignat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 38 are not maintainable. In view of section 139 of the Act, the presumption is that the cheque issued in favour of the 1st respondent was in discharge of a legally enforceable liability. Since the phrase used in section 139 is shall presume , the burden of proof is on the petitioner to establish that the cheque was not issued in discharge of a legally enforceable debt or liability. The averments in the complaint, prima facie disclose that the 1st respondent had deposited Rs. 1 lakh with the company and the cheque drawn by the petitioner and another was issued towards payment of the said amount. It is for the petitioner to establish that the cheque for Rs. 1 lakh, which was dishonoured, was not in fact issued towards the discharge of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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