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TMI Blog2017 (3) TMI 1852X X X X Extracts X X X X X X X X Extracts X X X X ..... e present petition is filed by the petitioner under section 482 of the Code of Criminal Procedure, 1871 [ Cr.P.C. for brevity] for quashing and setting aside the complaint, being Criminal Case No. 926/2011 pending in the court of Ld. Chief Metropolitan Magistrate (N.I. Act, Court No. 7), Ahmedabad and all further consequential proceedings arising therefrom, qua the present petitioner. 2. The facts leading to filing of the present petition are as under; 2.1 The petitioner was appointed as a Executive Director (Sales) in Corporate office of M/s. Wetell Everest Cap Solutions Pvt. Ltd. (Original accused No. 1) based at 224-225, Shreeram Tower, Kingsway, Sadar, Nagpur, on 16.04.2009. The letter of appointment, intimating the same was duly signed by Chairman-cum-Managing Director of the Company, viz., Mr. Amardeep Singh Thakur (Ori. Accused No. 4). Thereafter, the petitioner, vide letter dated 04.03.2010, tendered resignation as Executive Director (Sales), which was accepted by the Board of Directors and Company and the petitioner ceased to be a Executive Director with effect from 05.03.2010. Meanwhile, an agreement was executed between the respondent No. 2 and M/s. Wetell Everest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 7), Ahmedabad, for the offence punishable under Section 138 of the Negotiable Instruments Act. The petitioner is unnecessarily dragged into criminal proceedings. It is further argued that the petitioner was appointed as Executive Director (Sales) in the Corporate Office of Wetell Everest Cap Solutions Pvt. Ltd. and resigned from the said post on 4th March, 2010. His resignation was accepted with effect from 5th March, 2010. That, he was not a part of the Company, when the alleged offence was committed. The cheque in dispute was issued by the Company to the respondent No. 2 on 2nd July, 2010 and was deposited on 27th December, 2010 and it was dishonoured on 28th December, 2010. That, vicarious liability cannot be fastened upon the shoulder of the petitioner, as he was not incharge of, and responsible to the Company for the conduct of the business of the company. That, he was not concerned with the day to day activities of the Company during all these times, as he ceases to be a Director from 5th March, 2010 with effect from 14th April, 2010. That, the offence was allegedly committed under Section 138 of the Negotiable Instruments Act on 28th December, 2010, i.e. after 8 months o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filled up under the Companies Act, 1956, is not filed by the Company till today, and respondent No. 2 is not informed that petitioner has resigned as Director from the Company. That, the petitioner has not placed anything on record to show that he had resigned from the Company. That, it is presumed that the petitioner is continuing as Executive Director (Sales) of the Company. That, notice to the petitioner was sent by RPAD as well as UPC, which was served at the address of the company, in which, the name of the petitioner as Executive Director (Sales) continues. That, it cannot be said that the petitioner is not liable for the business affairs of the Company at all. He has placed his reliance on the on the decision of Hon'ble Supreme Court of India passed in Malwa Cotton and Spinning Mills Limited Vs. Virsa Singh Sidhu and Others reported in 2008 (0) GLHEL-SC 42012 , holding that effect of delay in presentation of form No. 32 before the Registrar of Companies is essentially a matter of trial. That, whether the petitioner intimated the Company and whether there was any resolution accepting the resignation of the petitioner are matters, in respect of which, evidence had t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appointment date of the petitioner as Executive Director (Sales) viz., such as 16th April, 2009 and 1st August, 2009 shown in the appointment letter as well as in record of the Ministry of Corporate Affairs, respectively. It is a submission of the petitioner that he has resigned from the Company vide letter dated 4th March, 2010 from the Directorship of the Company, which was accepted by the Board of Directors, and the Company relieved the petitioner from the post and he ceased to be a Director with effect from 5th March, 2010. It is pertinent to note that the resignation letter given by the petitioner dated 4th March, 2010 is not produced on record by the petitioner, though some of the correspondence accepting resignation from the petitioner and resolution passed by the Company are produced on the record, relieving the petitioner from the post of Director. As per the Board resolution, it was resolved that the Company had received the resignation of Satish Menon from the post of Executive Director (Sales)/Director of Wetell Everest Cap Solutions Limited vide resignation letter dated 4th March, 2010 and it was resolved by the Company, after due deliberation at the Board meeting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in had raised a ground that he had resigned from the Directorship before cheques were issued and the petition was allowed on the ground that no specific allegation against other accused person was made. It was held by the Apex Court that the fact of resignation and its correctness have been established in the trial Court, and therefore, the High Court could not have made the impugned judgment, while dealing with application under Section 482 of the Code. It was further held that what was the effect of delayed presentation of Form No. 32 before the Registrar of Companies was essentially a matter of trial and whether the respondent therein had intimated company and whether there was any resolution made accepting his resignation were matters in respect of which, evidence had to be led, and therefore, quashing of proceeding so far as the petitioner therein is concerned is improper and order of the High Court was set aside by allowing the appeal. 9. Here also, resignation of the petitioner and resolution passed by the Company, accepting resignation of the petitioner, is disputed by the respondent No. 2, which is a factual aspect. Forwarding of Form No. 32 by the petitioner to the Reg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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