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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 ..... .32 to show the date, when his resignation was accepted by Registrar of Companies. As per Rule 16 of the Companies (Appointment and Qualification of Directors) Rules, 2014, a director of the company, upon resignation, will forward his resignation in Form No.DIR-11 along with fees - A perusal of Form No.DIR-12, relied upon by the petitioner, shows that the declaration was signed by Aparna Puri, existing Director on 23.05.2016 and it was also digitally signed by the Company Secretary Anjum Goyal. Therefore, it is a disputed fact, as on which date, resignation of the petitioner was accepted and therefore, there is no illegality in the findings recorded by the trial Court that it could be an ante-dated information given by the petitioner to escape his liability. The petitioner neither in the application(s) for discharge moved before the trial Court nor in the grounds of petitions taken here, has relied upon any certificate from the office of Registrar of Companies, as to when his resignation was accepted and this information is withheld by the petitioner - There is a specific averment in para No.2 of the complaint that the petitioner was travelling abroad on behalf of accused No.1-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -M-22417-2019 360192 ₹ 3,17,715/- 15.12.2016 360650 ₹ 6,45.90/- 08.04.2017 2. CRM-M-23877-2019 348126 ₹ 6300/- 23.05.2016 348046 ₹ 1,39,715.10/- 23.06.2016 3. CRM-M-23844-2019 347971 ₹ 1,03,240.80/- 17.06.2016 4. CRM-M-23832-2019 348027 ₹ 3,01,210.20/- 16.07.2019 5. CRM-M-23819-2019 350649 ₹ 2,14,070/- 08.12.2016 6. CRM-M-23838-2019 348081 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 47961 ₹ 47,353.50/- 23.05.2016 17. CRM-M-23855-2019 348058 ₹ 1,17,618.30/- 17.06.2016 348306 ₹ 2,43,561/- 12.08.2016 348371 ₹ 4,804/- 24.08.2016 18. CRM-M-23805-2019 348010 ₹ 1,27,957.50/- 20.06.2016 19. CRM-M-23826-2019 348285 ₹ 8,43,292/- 17.08.2016 348356 ₹ 45,685.80/- 22.08.2016 20. CRM-M-23911-2019 347953 ₹ 1,48,400.10/- 23.06.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 57,806.10/- 23.05.2016 348135 ₹ 4,500/- 23.05.2016 32. CRM-M-25442-2019 347926 ₹ 72,501.46/- 09.06.2016 350190 ₹ 2,10,239/- 18.11.2016 33. CRM-M-23845-2019 348007 ₹ 82,102.50/- 25.05.2016 348144 ₹ 6,300/- 26.05.2016 34. CRM-M-23816-2019 348068 ₹ 93,939/- 27.05.2016 35. CRM-M-25939-2019 347818 ₹ 1,89,135.31/- 20.06.2016 36. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.08.2016 26.07.2016 46. CRM-M-23852-2019 348319 ₹ 8,00,000/- 29.06.2016 348188 ₹ 1,473/- 19.07.2016 347963 ₹ 5,28,356.70/- 21.07.2016 47. CRM-M-23828-2019 34829234 ₹ 2,65,901/- 12.08.2016 8361 ₹ 50,110.30/- 22.08.2016 348016 ₹ 2,21,160.60/- 23.08.2016 48. CRM-M-23904-2019 348275 ₹ 7,83,683/- 11.08.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 8,34,386.40/- 16.08.2016 57. CRM-M-31228-2019 348033 ₹ 1,95,165.90/- 19.08.2016 58. CRM-M-31073-2019 348272 ₹ 9,54,853/- 20.05.2016 59. CRM-M-31025-2019 347939 ₹ 78,538.60/- 25.05.2016 60. CRM-M-31015-2019 347758 ₹ 3,53,486.67/- 24.06.2016 61. CRM-M-31031-2019 348198 ₹ 4,500/- 22.07.2016 347989 ₹ 2,28,964.50/- 23.08.2016 62. CRM-M-31043-2019 348336 ₹ 2,56,551/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18.05.2016 72. CRM-M-31072-2019 348134 ₹ 4,602/- 23.05.2016 348064 ₹ 1,93,527.90/- 19.08.2016 73. CRM-M-30966-2019 348303 ₹ 1,29,280/- 18.06.2016 348039 ₹ 1,32,060.60/- 20.06.2016 348196 ₹ 5,940/- 22.07.2016 74. CRM-M-31044-2019 347936 ₹ 1,26,908.10/- 20.06.2016 75. CRM-M-31066-2019 739723 ₹ 2,86,464/- 25.07.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -M-23769-2019 350632 ₹ 6,25,694/- 19.01.2017 360639 ₹ 13,164.30/- 08.04.2017 86. CRM-M-25992-2019 348055 ₹ 1,45,233/- 23.06.2016 87. CRM-M-25171-2019 350202 ₹ 3,84,015/- 04.11.2016 88. CRM-M-23782-2019 350623 ₹ 8,46,595/- 19.01.2017 350645 ₹ 9,00,000/- 16.02.2017 350241 ₹ 9,00,000/- 02.03.2017 360664 ₹ 71,875.70/- 08.04.2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 348265 ₹ 2,97,663/- 18.08.2016 348942 ₹ 1,90,291.50/- 19.08.2016 98. CRM-M-23915-2019 348031 ₹ 1,00,157.40/- 17.06.2016 99. CRM-M-23861-2019 348320 ₹ 3,25,895/- 18.08.2016 348381 ₹ 8,742.60/- 26.08.2016 100. CRM-M-24140-2019 350614 ₹ 10,77,565/- 09.03.2017 101. CRM-M-23864-2019 347956 ₹ 1,37,887.20/- 20.06.2016 102. CRM-M-23863-2019 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducted at source. In this way, a sum of ₹ 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 of accused heard. Complainant has filed the instant complaint against the accused under Section 138 of Negotiable Instruments Act on the ground that the accused in discharge of his existing liability had issued a cheque bearing No.260192 dated 15.12.2016 amounting to ₹ 3,17,715/-, cheqeue bearing No.360650 dated 08.04.2017 amounting to ₹ 6345.90 in favour of the complainant. On presentation, the said cheques were dishonoured by the bank with the remarks Funds Insuffici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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.1 company on 21.06.2016 and in that regard DIR Form 11 was duly sent by the applicant to the Registrar of companies on 30.01.2016 and DIR Form 12 was in turn sent by the company to the Registrar of the companies on 22.7.2016. It has been argued that both the DIR Form 11 and 12 mention the date having effect of resignation of the applicant as 21.06.2016, which is much prior of the date of cheques in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant 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. Counsel for complainant in support of his contentions has also placed reliance upon cases titled as Mrs. Anuradha alias Renu Sayal Vs. Sat Pal Singh and Others, 2003(1) ISJ (Banking) 59, Bharat Poonam Chand Shah Vs. Dominos Printech India Pvt. Ltd., 2007(19) R.C.R. (Criminal) 440, Ved Prakash Gupta and another Vs. M/s Anchon Chemplast Pvt. Ltd. and others, 2013(5) R.C.R. (Criminal) 225, Standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 business of accused company, therefore then who all were responsible? Moreover, since applicant was director, the onus is upon him to prove by leading cogent evidence that he was only a sleeping/passive director not responsible for the act and conduct of accused company. Thus, there are no merits in the arguments as advanced by ld. Counsel for applicant and the case laws as r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 same to its premises and after milling the paddy, is selling the rice as well as its by-products in India as well as overseas. It is also specifically stated that the petitioner and other accused are frequently travelling abroad for export of the rice and are attending their offices for carrying out the business and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 he never travelled to the countries, where the accused- company M/s Amira Pure Foods Pvt. Ltd. was exporting the rice and the petitioner has deliberately withheld this evidence. It is also argued that the petitioner has not disclosed in the applications for discharge or in the present petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 complainants that petitioner is an active director and responsible person. (e) The trial Court, while dismissing the application, has also observed that as per the annual returns filed by the company pertaining to the years 2014-2015, 2015-2016 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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