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TMI Blog2021 (10) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... and one director in case of one person company (b) a maximum of fifteen directors, provided that a company may appoint more than 15 directors after passing a sepcial resolution, further as per Sub-Section (2) of the above said section, every company existing on or before the date of commencement of the act shall within one year from such commencement shall comply with the requirement of Sub Section (1), that as per Rule 3 of the companies (Appointment and qualification of Directors) Rule, 2014, every unlisted public company having (a) paid up share capital of one hundred crore rupees or more or(b) turnover of three hundred crore rupees or more, shall appoint atleast one woman director within one year from the commencement of companies Act, 2013 (i.e.) 01.04.2014. As per provisions of Section 172 of the Companies Act, 2013 If a company contravene any of the provisions in this Chapter and for which no specific punishment is provided therein, the company and every officer of the company, who is in default shall be punishable with fine, which shall not be less than fifty thousand but may extend to five lakh rupees. Further, a letter dated 06.04.2016 was addressed by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o call for the records in E.O.C.C.No.299 of 2015 on the file of learned Additional Chief Metropolitan Magistrate E.O.-1, Allikulam Moore Market, Chennai and quash the same. 2. The case of the petitioner is that he was appointed as Managing Director of the company M/s Eduexel Infotainment Limited [hereinafter referred to as 'Company'] as on 05.05.2011. The company was involved in the business of film distribution. The petitioner had put his expertise in the running of the company effectually and smoothly during his tenure. During October 2012, the petitioner submitted the letter to the Board of Directors informing his decision to step down as the Managing Director of the company due to his personal reasons. Thereafter, the petitioner addressed a letter dated 05.09.2013 to the Board of Directors of the company stating that he had resigned from the company as Director, Managing Director and all executions of the Company. The petitioner was in no way connected with the company or in the day today functioning of the company as on 05.09.2013. At present, the petitioner is working in Nigeria, he had twenty plus years of international experience in business development and marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, who had actually failed to obey the show cause notice on behalf of the company issued by the respondent. 5. The learned counsel for the petitioner also submits that in the annual report for the year 2013-2014 filed by the company with the respondent, it is very clearly stated at Page No.8, that the petitioner had resigned from the Board and that the Board takes on record the contribution of the petitioner during the tenure. Further, the respondent had filed a complaint in C.C.No.299 of 2015 against two former Directors of the company including the petitioner and another case in C.C.No.252 of 2015 was filed by the respondent for not complying with the summons of the respondent, and the respondent had filed the case against five directors including this petitioner. Further, both the cases have been filed at the same time and it is not possible to comprehend the decision of the respondent to leave out other directors in the present complaint. This clearly shows that the respondent has mechanically prosecuted the complaints. 6. The learned counsel for the petitioner also submits that the petitioner has changed his previous residence address during January, 2013, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s available in the records of this office. 9. The learned standing counsel for the respondent vehemently submits that the resignation of a Director is taken on record in the office of the respondent only when the Board forwards the copy of the resignation letter within the time frame prescribed under the Act, stating clearly the grounds on which the Director has resigned. In case the office of the respondent accepts the fact of filing of Form DIR-11 by the petitioner, the DIR-12 has to be mandatorily filed by the company when a Director resigns. Thus, as per Section 170(2) of the Companies Act, 2013 a return containing such particulars and documents as may be prescribed of the Directors and the key managerial personnel shall be filed with the Registrar within 30 days from the appointment of every Director and key managerial personnel as the case may be and within 30 days of any change taking place. Further, a return containing the particulars of appointment of Director or key managerial personnel and changes therein shall be filled with the Registrar in Form DIR-12 along with such fee as may be provided in the Companies (Registration offices and Fees) Rules, 2014 within thirty d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o attaching my resignation letter as managing director of company dated Oct 20th 2012 which the board has failed to place despite several reminders and intimations. Under appropriate rules I understand I am automatically disqualifed as Director of the Company as I have failed to attend any of the past 3-4 board meetings of the company. I thank the board and other stakeholders of the company for the support and courtesies extended to me during my tenure as director of the company. I which the company all success 14. It is also seen that the petitioner has addressed a letter dated 29.03.2014 with regard to non fling of Form No.32 by the Board of Directors of the Company to the respondent stating that he has submitted resignation on 20.10.2012 and the attachment of the said letter on 05.09.2013, however, till date on an inspection of the MCA Website, the petitioner's name has not been removed from the list of Directors. The said letter proceeds to state that the same clearly amounts to a willful neglect on their part and amounts to misleading the public at large and an offence within the provisions of the Companies Act and requested to take appropriate steps to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be proceeded in terms of Section 207(4) of the Companies Act, 2013. On 08.07.2015, the Regional Director (SR), Ministry of Corporate Affairs, Chennai has sent a letter to the Registrar of Companies requesting to launch prosecution against all the officers and Directors of the Company for violation of Section 207(3)(b) of the Companies Act, 2013. Thereafter, on 08.08.2015, the company has addressed a letter to the Registrar of Companies stating that they have received the show cause notice dated 27.07.2015 and that Mr.P.K.Sarkar Ex-Director used to take care of statutory compliances and that suddenly, he expired on 11.04.2015. Further, the company requested to issue the copy of the letter dated 17.3.2015 and to withdraw the instant show cause notice and sought four weeks time to comply with the notice dated 17.03.2015. 17. On an examination of the entire materials placed on record it is seen that the Assistant Director, Government of India, Ministry of Corporate Affairs, Chennai had issued summons to the petitioner and others to attend the said office to give evidence and to produce the books of accounts or any other paper in pursuant to the notice dated 17.03.2015. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to five lakh rupees. Further, a letter dated 06.04.2016 was addressed by the petitioner to the Registrar of Companies seeking apologize for the delay in response and stated that he was ceased to be a Director of the Company on 05.09.2013 and that he was not in touch with the said company. That apart, the petitioner had appeared before the Court of Additional Chief Metropolitan Magistrate, Egmore, three times, since Feb, 2016 and he had full intention to resolve the matters and only after his resignation, all causes have arisen. Further, the petitioner had stated that he is willing to cooperate at any time. 20.Further, an examination of the record would show that there is a receipt of G.A.R.7 from the Ministry of Corporate Affairs from one Tanmoy Dey, for a sum of ₹ 7,800/- towards fee for Form DIR-11 and the same would show that the petitioner had resigned from the company on 05.09.2013 and the same was declared by the petitioner by signing the same digitally only on 05.03.2016, which is only after initiation of the present proceedings, however, Form No.DIR-12 is not found in the material produced and that Form 32 has not been filed by the company. 21. It is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, however DIR 11 alone has been filed by the petitioner that too belatedly. 24. In so far as offence under Section 149 of the Companies Act is concerned, the petitioner submits that the Companies Act, 2013 came into force with effect from 01.04.2014 and that the petitioner was resigned on 05.09.2013 and hence he is not liable, in contra, the respondent states that the proviso under Section 168 of the Companies Act clearly states that even if a person has resigned from the Directorship, he will be liable for the offences committed during his tenure. 25. In view of the above and considering the facts and circumstances of the present case, this Court is of the view that the grounds and the submissions raised by the petitioner are purely a matter of evidence and the same cannot be gone into by this Court in the quash petition. It is well settled legal position that only when the allegation made in the complaint do not constitute an offence, for which, the accused is subjected to trial, the complaint could be quashed. 26. In the instant case, the petitioner has not made out any case within the purview of Section 482 Cr.P.C., warranting to quash E.O.C.C.No.299 of 2015 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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