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TMI Blog2019 (11) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... 15/- 15.12.2016 360650 Rs. 6,45.90/- 08.04.2017 2. CRM-M-23877-2019 348126 Rs. 6300/- 23.05.2016 348046 Rs. 1,39,715.10/- 23.06.2016 3. CRM-M-23844-2019 347971 Rs. 1,03,240.80/- 17.06.2016 4. CRM-M-23832-2019 348027 Rs. 3,01,210.20/- 16.07.2019 5. CRM-M-23819-2019 350649 Rs. 2,14,070/- 08.12.2016 6. CRM-M-23838-2019 348081 Rs. 1,70,611.20/- 27.06.2016 7. CRM-M-23779-2019 348362 Rs. 59,844.60/- 22.08.2016 348294 Rs. 7,00,000/- 21.07.2016 348295 Rs. 8,00,000/- 16.07.2016 8. CRM-M-23800-2019 348280 Rs. 6,49,821/- 19.07.2016 348353 Rs. 34,241.40/- 22.08.2019 9. CRM-M-23812-2019 348002 Rs. 46,120.50/- 23.05.2016 10. CRM-M-23772-2019 348949 Rs. 1,59,842.70/- 27.06.2016 11. CRM-M-23833-2019 348998 Rs. 1,69,106.40/- 27.06.2016 12. CRM-M-23794-2019 348018 Rs. 70,477.20/- 25.05.2016 348167 Rs. 5,400/- 24.06.2016 13. CRM-M-23869-2019 348022 Rs. 66,512.70/- 23.05.2016 14. CRM-M-23841-2019 348008 Rs. 84,892.50/- 25.05.2016 348238 Rs. 3,912/- 26.07.2016 15. CRM-M-25377-2019 079610 Rs. 5,42,243/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 348344 Rs. 10,039.50/- 18.08.2016 44. CRM-M-25171-2019 347765 Rs. 3,81,315.03/- 26.06.2016 45. CRM-M-30940-2019 348063 348245 Rs. 2,16,538.20/- Rs. 14,400/- 23.08.2016 26.07.2016 46. CRM-M-23852-2019 348319 Rs. 8,00,000/- 29.06.2016 348188 Rs. 1,473/- 19.07.2016 347963 Rs. 5,28,356.70/- 21.07.2016 47. CRM-M-23828-2019 34829234 Rs. 2,65,901/- 12.08.2016 8361 Rs. 50,110.30/- 22.08.2016 348016 Rs. 2,21,160.60/- 23.08.2016 48. CRM-M-23904-2019 348275 Rs. 7,83,683/- 11.08.2016 348350 Rs. 63,607.50/- 18.08.2016 49. CRM-M-26300-2019 348285 Rs. 8,43,292/- 17.08.2016 348356 Rs. 45,685.80/- 22.08.2016 50. CRM-M-27328-2019 347993 Rs. 96,823.80/- 27.05.2016 51. CRM-M-31198-2019 348087 Rs. 1,45,340,10/- 23.06.2016 348313 Rs. 7,87,113/- 23.05.2016 348378 Rs. 20,546.10/- 24.08.2016 52. CRM-M-31020-2019 348067 Rs. 85,204.80/- 25.05.2016 53. CRM-M-30959-2019 347981 Rs. 2,10,144.60/- 19.08.2016 34835434 Rs. 3,525/- 22.08.2016 8283 Rs. 1,42,817/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2016 80. CRM-M-25326-2019 350206 Rs. 5,18,134/- 18.11.2016 81. CRM-M-25928-2019 348066 Rs. 5,70,104.10/- 21.07.2016 82. CRM-M-25916-2019 348273 Rs. 9,00,000/- 28.06.2016 348250 Rs. 1,772/- 26.07.2016 83. CRM-M-25973-2019 079825 Rs. 7,27,626/- 31.07.2016 347795 Rs. 3,89,690.08/- 26.06.2016 84. CRM-M-25920-2019 348004 Rs. 4,88,860.20/- 17.08.2016 85. CRM-M-23769-2019 350632 Rs. 6,25,694/- 19.01.2017 360639 Rs. 13,164.30/- 08.04.2017 86. CRM-M-25992-2019 348055 Rs. 1,45,233/- 23.06.2016 87. CRM-M-25171-2019 350202 Rs. 3,84,015/- 04.11.2016 88. CRM-M-23782-2019 350623 Rs. 8,46,595/- 19.01.2017 350645 Rs. 9,00,000/- 16.02.2017 350241 Rs. 9,00,000/- 02.03.2017 360664 Rs. 71,875.70/- 08.04.2017 89. CRM-M-25994-2019 343943 Rs. 5,17,662/- 21.07.2016 90. CRM-M-23830-2019 348023 Rs. 3,58,202.70/- 16.07.2016 348185 Rs. 4,520/- 19.07.2016 91. CRM-M-24155-2019 348059 Rs. 57,372.50/- 23.05.2016 92. CRM-M-23868-2019 348090 Rs. 1,50,854.40/- 23.06.2016 348205 Rs. 1,161/- 22.07.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the unpaid amount as per market custom and oral agreement between the parties. That on 01.04.2014, a sum of Rs. 3,44,213/- was due against the accused. During financial year, 2014-2015, the accused paid a sum of Rs. 3,44,213/- to the complainant from 29.08.2014 to 20.12.2014. During this financial year, the accused purchased paddy worth Rs. 3,17,715 on 14.02.2015 from complainant. A sum of Rs. 4944/- was debited on account of interest on unpaid price and a sum of Rs. 4,994/- was credited on account of tax deducted at source. In this way, a sum of Rs. 3,62,212/- remained due towards accused on 31.03.2015. The interest after 31.03.2015 is also due against the accused. The statements of account of accused in the books of complainant for the year 2014, 2015, 2015-2016 & 2016- 2017 are attached herewith." It is further stated in the complaint that in discharge of his liability, the petitioner issued the cheques, as detailed above, which were, later on, dishonoured and after serving the legal notice, the impugned complaints were filed. The trial Court, after recording the preliminary evidence, passed the summoning order, which reads as under: - "Arguments on the summoning point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . w.e.f. 21.01.2016 and in this regard, Form No.DIR-11 was sent to the Registrar of Companies on 30.01.2016 and Form No.DIR-12 was submitted to the Registrar of Companies by Aparna Puri, duly authorized director of the accused-company through Anjum Goyal, Company Secretary. It is also stated in the application that the petitioner is not the active director and therefore, the proceedings qua him are liable to be dropped. The trial Court, upon consideration of arguments of the parties, dismissed the application on 26.04.2019, by passing the following order: - "I have heard learned counsel for both the parties and perused the case file carefully and thoroughly. The present application has been filed by the applicant/accused Anil Gupta for dropping proceedings qua him on the ground that he has been summoned as one of the accused in the present complaint which is with respect to cheques bearing no. 360192 and 360650 dated 15.12.2016 and 08.04.2017 respectively which were dishonoured vide separate return memos each for the want of sufficient funds. The main contention of ld. Counsel for the applicant/accused is that the applicant had already resigned as Director from the accused no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. SKK Agro Pvt Ltd, decided on 11.02.2019 by the Hon'ble High Court of Delhi in Crl. M.C. 4092/2016 and Anil Gupta Vs. M/s Prashanna Mal Nand Lal Pundri, decided on 25.4.2016 by the Ld. ASJ, Kaithal in Crl. Revision no. 176 of 2018. The ld. Counsel for the complainant on the other hand has opposed the present application on the ground that the present application is frivolous filed by the applicant with malafide intentions. It has been argued that the applicant has prepared an ante dated resignation dated 30.1.2016 whereas DIR Form-12 shows the resignation of the applicant to be digitally signed on 22.7.2016 by Director Aparna Puri of accused no.1 company. It has been argued that the applicant was actively engaged in the conduct and affairs of the company and the plea of resignation as raised by the applicant by way of present application is actually a plea of defence. He has further argued that the applicant/accused has adopted this modus operandi with an intention to defraud his creditors, however it is an established principle of law that the court must not hesitate to lift the corporate veil to the extent of piercing the same if warranted in order to seek the truth. The ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for defrauding others, the court would ignore the corporate character and will look at the reality behind the corporate veil so as to enable it to pass appropriate orders to do justice between the parties concerned. Further, directions as given by the Hon'ble Punjab and Haryana High Court in CRM-M-36869-2018 decided on 30.10.2018 cannot be expected to be complied with by the complainant because the present complaint has been filed much prior to the aforesaid date of order. Moreover, the complainant in para 2 of the complaint has duly mentioned that accused no.2 to 7 are active directors and actively involved in the business of accused no.1 and as already discussed above, applicant/accused is admitted to be Director of accused no.1 company. The contention of ld. Counsel for applicant that the applicant did not hold any shares in accused no.1 company thus was not an active director is not tenable because Form No.MGT-7 as relied upon by applicant to show his zero share holding shows that even the other four directors also have no share holdings and if the role of director depends upon the total share holding then it would mean that none of the five directors had active role in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that a non-executive director of the company or a director, who has resigned prior to issuance of the cheque cannot be prosecuted. It is further held by the Hon'ble Supreme Court that the complainant should specifically spell out how and in what manner, the director was incharge and responsible for the conduct of business of the company and mere bald statement is not sufficient. The Hon'ble Supreme Court has also held that Form 32 issued by the Registrar of Companies shows proof of resignation of the director prior to issuance of the cheque(s). Learned counsels for the petitioner have further relied upon Anil Chanana and another Vs. M/s Gyani Ram Ruliya Ram and another, 2019 (1) RCR (Crl.) 388 to submit that with regard to another director of the same accused-company M/s Amira Pure Foods Pvt. Ltd., who had also resigned prior to issuance of the cheques, the complaints were quashed. Learned counsels for the respondent-complainant have argued that in para No.2 of the complaint, it is specifically stated that the petitioner is one of the active director and the accused-company is purchasing the raw material i.e. paddy from the different grain markets and is transporting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e needs to be proved by leading the evidence. It is submitted that all the arguments raised on behalf of the petitioner are based on disputed questions of facts and even Form No.DIR-12, relied upon by the petitioner, shows that it was digitally signed by director Aparna Puri on 22.07.2016 and therefore, again it is disputed fact whether the petitioner resigned on 21.01.2016 or not, as in the intervening period, the cheques were issued. Learned counsels for the respondent have next argued that the petitioner, after purchasing the paddy worth crores of rupees, as director of the company from the commission agents, who have further purchased it from the poor farmers, has failed to own his liability on account of which the complainant(s) are not able to make the payment to the farmers and they are ultimate sufferers. It is further argued that the petitioner has submitted the ante-dated Forms with the Registrar of Companies just to escape his liability, as no evidence is placed on record to rebut the averments made in the complaint that the petitioner, being director, was frequently travelling abroad and for the relevant period, no copy of the passport is placed on record, to show that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rar of Companies, as to when his resignation was accepted and this information is withheld by the petitioner. (c) The complainant(s) in the impugned complaint(s) have specifically averred that the petitioner was an active director of the accused-company and had purchased the paddy from the grain markets from commission agents/farmers and after milling the same, was selling the by-products in India as well as overseas. There is a specific averment in para No.2 of the complaint that the petitioner was travelling abroad on behalf of accused No.1-company for export of the rice and was attending the offices of accused-company for carrying out its business and thus, he was responsible for day to day conduct and affairs of the company. (d) The petitioner has not filed any affidavit contrary to the allegations in complaint, either before the trial Court, when the application(s) for discharge were moved or in this Court, that on behalf of the company, he has never travelled abroad for exporting the rice and even has not attached copy of his passport to deny this fact. Even there is no denial to the statement of accounts for the years 2014-2015, 2015-2016 and 2016-2017, relied upon by co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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