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TMI Blog2010 (1) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... s head throughout the trial. Therefore, when there is a reasonable certainty that the trial is not going to result in conviction, it would be neither fair nor reasonable to allow it to proceed against a person such as the petitioner in this case. Thus the criminal complaint in question, to the extent, it pertains to the petitioner, is hereby quashed. - CRL. M.C. 3937/2009 - - - Dated:- 12-1-2010 - V.K. JAIN, J. Pankaj Kumar for the Applicant. Gaura Liberhan and Pawan Bahl for the Respondent. ORDER 1. This is a petition under section 482 of the Code of Criminal Procedure for quashing the criminal complaint filed by the respondent against the petitioner under sections 24(1) and 27 of Securities and Exchange Board of India Act, 1992. 2. The petitioner was a Director in M/s. Fair Deal Forests Limited, till 30-3-1997 when she resigned from the Directorship and also submitted Form-32 with Registrar of Companies. In order to regulate entities, which used to issue instruments such as Agro Bonds, Plantation Bonds, etc., Government of India decided to treat such schemes as Collective Investment Schemes and brought them under the purview of SEBI Act, 1992, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner resigned as a Director of M/s. Fair Deal Forests Limited with effect from 30-3-1997 and intimation in this regard was given to Registrar of Companies on or before 14-1-1998. There is no good reason for not accepting an authentic Public Document such as certified copy of Form 32. This is not the case of the respondent that the certified copy, filed by the petitioner, is a forged document. Hence, for the purpose of this petition, I proceed on the basis that the petitioner had actually resigned as a Director of M/s. Fair Deal Forests Limited on or before 14-1-1998, though his case is that he resigned with effect from 30-3-1997. 4. Section 27 of Securities and Exchange Board of India, 1992 reads as under : "27. Offences by Companies. (1) Where an offence under this Act has been committed by a company, every person who at the time the offence was committed was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly : Provided that nothing contained in this sub-section shall rende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation. For the purposes of this section : ( a ) company means any body corporate and includes a firm or other association of individuals; and ( b ) Director in relating to a firm, means a partner in the firm."] It would thus be seen that the provisions of section 27 of SEBI Act, 1992 are absolutely identical to the provisions of section 141 of Negotiable Instruments Act and, therefore, the interpretation given by the Court to the provisions of section 141 of Negotiable Instruments Act would equally apply to section 27 of SEBI Act. 5. The question whether a criminal complaint under section 138 of Negotiable Instruments Act can be quashed on the basis of certified copy of Form 32, issued by Registrar of Companies, came up for consideration before me in Criminal Misc. No. 923/2009 and 1654/2009, decided on 30-11-2009. In that case, the petitioner claimed that he had resigned as a Director of the concerned company much before cheques in question, which were later on dishonoured, were issued and, therefore, he was not vicariously liable for the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Managing Director or Joint Managing Director at the relevant time. This is because the prefix Managing to the word Director makes it clear that they were in charge of and are responsible to the company, for the conduct of the business of the company. ( ii )In the case of a director or an officer of the company who signed the cheque on behalf of the company, there is no need to make a specific averment that he was in charge of and was responsible to the company, for the conduct of the business of the company or make any specific allegation about consent, connivance or negligence. The very fact that the dishonoured cheque was signed by him on behalf of the company, would give rise to responsibility under sub-section (2) of section 141. ( iii )In the case of a Director, Secretary or Manager (as defined in section 2(24) of the Companies Act) or a person referred to in clauses ( e ) and ( f ) of section 5 of Companies Act, an averment in the complaint that he was in charge of, and was responsible to the company, for the conduct of the business of the company is necessary to bring the case under section 141(1). No further averment would be necessary in the complaint, though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm 32 was filed before the Court by the petitioner in that case. On the other hand, in the present case, the petitioner has placed on record the certified copy of Form 32, authenticity of which has not been disputed by the respondent. Moreover, the decision of this Court in the case of Dr. (Mrs.) Sarla Kumar ( supra ), which is an earlier judgment was not brought to the notice of this Court in the case of Bharat Poonam Chand Shah ( supra ). 10. Though as a general proposition of law, the defence available to the accused is not to be examined at this stage, there can be no valid objection to considering an authentic Public Document such as certified copy of Form 32, issued by Registrar of Companies, in a petition under section 482 of the Code of Criminal Procedure, when the genuineness of the documents is not disputed and the matter can be finally disposed of on the basis of such a documents. 11. In All Carogo Movers (I) Pvt. Ltd. v. Dhanesh Badarmal Jain [2007] 12 SCALE 39, the Hon ble Supreme Court observed as under : "It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 482 of the Code where along with the petition the accused may file unimpeachable evidence of sterling quality and on that basis seek quashing, but is about the right claimed by the accused to produce material at the stage of framing of charge." (p. 578) Thus, there can be no valid legal objection to considering the certified copy of Form 32 issued by Registrar of Companies correctness of which is unimpeachable and which can be otherwise be read in evidence without any formal proof. 12. A criminal trial is a serious matter, having grave implications for an accused, who not only has to engage a lawyer and incur substantial expenditure on defending him, but, has also to undergo the ordeal of appearing in the Court on every date of hearing, sacrificing all his engagements fixed for that day. If he is in business or profession, he has to do it at the cost of affecting his business or profession, as the case may be. If he is in service, he has to take leave on every date of hearing. Besides inconvenience and expenditure involved, a person facing criminal trial undergoes constant anxiety and mental agony, as the sword of possible conviction keeps hanging on his head thro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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