9911796707
TMI Blog2009 (4) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... the Companies Act, 1956, bearing Complaint Case Nos. 238/1993 to 242/1993 before the Additional Chief Metropolitan Magistrate, Delhi against the petitioner resulting in the petitioner being convicted and sentenced for commission of offences punishable under section 162 read with section 220(3) of the Companies Act in Complaint Case Nos. 238/93, 239/93, 240/93, 241/93 and 242/93 as well as complaints under section 159 read with section 162 resulting in the petitioner being further convicted and sentenced for the offences under the aforesaid sections in Complaint Case Nos. 235/93, 236/93, 237/93, 244/93 and 283/93. The petitioner's contention is that the petitioner never joined M/s. Toyo Lamps Pvt. Ltd. and that he was an Honorary Secretary i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a Director, reads as follows:- "COMMUNICATION OF A RESIGNATION OF A DIRECTOR Department's view I. - Although a director is required by section 264 of the Act to file with the Registrar his consent to act as such director, there is no provision in the Act under which the director can communicate his resignation from the directorship to the Registrar. The responsibility for the communication of such resignation has been cast by section 303(2) of the Act on the company. The omission of the company to notify the resignation of the director, therefore, puts such director in an embarrassing position. It has, therefore, been decided that where a Registrar receives any communication from any director about his (director's) resignation the Regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been filed by the company in respect of the resignation of Sh. B.N. Kaushik as Secretary of the company with effect from 27-7-1971 and the other averments made in the aforesaid para are denied for want of knowledge." 6. Reliance is placed by the learned counsel for the petitioner upon the judgment of a learned Single Judge of this Court (Hon'ble Mr. Justice D.K. Jain as His Lordship then was) in Luk Auto Ancillary (India) Ltd. (In Liquidation) v. Laxmi Narain Raina 1999 (50) DRJ 101, the relevant portion of which reads as follows:- "I have heard Mr. Sharma, learned counsel for the applicant, respondent No. 4 herein and Mr. Luthra, learned counsel for OL. In addition to what has been pleaded in the application, it is also pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quidation but it was done and, therefore, it could not be said that the applicant's resignation had been accepted. In view of the fact that letter of resignation, as sent to the Registrar of Companies was not rejected and the fact that after the receipt of the said letter no prosecution is stated to have been launched against him, presumably in terms of the aforesaid circular issued by the Department of Company Affairs, the non-furnishing of Form No. 32 by applicant No. 2 is of no consequence. Accordingly, for the foregoing reasons, the application is allowed and the applicant is discharged in Crl.O.2/82." 7. Reliance is also placed by the learned counsel for the petitioner upon a Division Bench Judgment of the Bombay High Court in Saumi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention to resign from the post of the director of the said company. Thereafter the said letter has to be moved in the meeting of the directors of the company, it may be ordinary meeting or may be extraordinary or special meeting, as the case may be, and the board of directors have to take a decision whether the Board is accepting his resignation or not. An intimation should be sent to such director and after such resolution is passed, the company secretary is under the obligation to comply with the legal formalities for giving a finishing touch to the resolution which has been passed in the said meeting of the board of director. It is for the company secretary to fill in the forms as prescribed and to give due information and intimation to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent relied upon the judgment of a learned Single Judge of this Court (Hon'ble Mr. Justice Anil Dev Singh) in Anita Chadha v. Registrar of Companies [1999] 59 Comp. Cas. 265 to contend that a perusal of the section 5 of the Companies Act shows that even after retirement, a Director of a Company would come under the definition of "officer in default". 11. The aforesaid judgment in Anita Chadha's case (supra), in my view, has no application to the facts of the present case for the reason that the facts of the said case are clearly distinguishable. The petitioner in the instant case had tendered his resignation on 27-7-1971, i.e., 11 to 15 years prior to the alleged violations which pertained to the years 1982, 1983, 1984, 1985 and 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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