9911796707
TMI Blog2025 (1) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed registers of company, accounts and balance sheet of company and thereafter the said fact is to be brought to the notice of the members of the company as early as possible and at the latest in annual general meeting. Section 168 (2) of the Companies Act, 2013 also provides that the resignation of a director shall take effect from the date on which the notice is received by the company or the date if any specified by the director in the notice, whichever is later. In the present case from the supplementary affidavit filed by the petitioner it further discloses that the letter of resignation was sent through speed post on 14.03.2020 and it was delivered to the accused company on 16.03.2020 - Proviso to section 168 (1) states that a director may also forward a copy of his resignation along with detailed reasons for the resignation to the Registrar within 30 days of resignation but this proviso is not mandatory. A resignation cannot be treated as not accepted by the Company simply because Director had not sent the copy of resignation to the Registrar within 30 days. Similarly, even after tendering resignation and the company even after receiving the same, if does not call m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of offence. 3. The gist of allegation made in the complaint pertains to dishonour of a cheque bearing no. 205893 dated 01.01.2021 for an amount of Rs. 25 lakhs issued by the accused company M/S Arcuttipore Tea company Ltd. towards the discharge of its existing dues/liabilities. The complainant company presented the said cheque for encashment through its banker within its validity period but the said cheque was returned dishonoured by the drawee bank with the specific remark 'fund insufficient' vide cheque return memo dated 6th March, 2021. The complainant company issued a demand notice dated 12.03.2021 through its advocate calling upon the accused persons to pay a sum of Rs. 25 lakhs being the amount of the said dishonored cheque within 15 days from the date of the receipt of the notice, but in spite of receipt of said notice the accused persons have failed to pay the said amount and as such the instant criminal proceeding has been instituted. 4. Mr. Talukdar Learned Counsel appearing on behalf of the petitioner submits that the petitioner has resigned as a Director from the accused company with effect from 13th March, 2020 and he had been disassociated from the affairs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ividual can be considered to be disassociated from the affairs of the company. 7. Mr. Talukdar further submits that under similar facts and circumstances, pertaining to the same accused company, this particular petitioner was wrongly arraigned as accused in other proceedings under section 138 read with 141 of the N.I. Act, before Judicial Magistrate, Siliguri and being aggrieved by the same the petitioner herein challenged the said proceeding before the Circuit Bench Jalpaiguri being CRR 91 of 2022 and CRR 80 of 2022, wherein it was also averred that the petition of complaint lacked specific Averments qua the petitioner. This High Court by its judgment dated 11th August, 2022 was pleased to held that the effective date of resignation of the petitioner to be 13th March, 2020 qua the same accused company i.e. Arcuttipore Tea Company Ltd. In view of above the date of resignation as appearing in Form DIR-12 would be the relevant date for consideration. 8. In this context Mr. Talukdar further referred section 168(2) of the Companies Act 2013 which provides that the resignation of a Director shall take effect from the date on which the notice is received by the company or the date if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opposite parties submits that though the accused has claimed that he had resigned from the company on 13th March, 2020 but it clearly appears that DIR-12 was uploaded on 23.11.2021, on the basis of a resolution taken by the Board of Directors on 22nd November, 2021, which is long after the date of commission of offence. He further argued that when his resignation was accepted on 22.11.2021 that date will have to be taken as the effective date from which he got disassociated with the company. As the offence herein committed much prior to that date of resolution, the petitioner cannot escape his liability. In this context he referred Rule 15 and Rule 16 of the companies (Appointment and qualification of Directors) Rules, 2014 and contended that it is bounden duty of the company to inform about such resignation within 30 days and copy of resignation shall be forwarded which is a mandatory term. Moreover, quoting section 168 of the Companies Act, he further contended that the proviso to that section states that whenever a director resigns from his post, a copy of his resignation along with detailed reasons for the resignation has to be forwarded to the Registrar within 30 days of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of or involved in day to day affairs of the company. There is not even a single statement on record to show that any act was committed by the petitioner with effect from the date of his resignation, from which a reasonable inference can be drawn that the petitioner could be vicariously held liable for the offence with which he is charged. Much before the date of drawing of the cheque by the accused company, the petitioner resigned from the Board of Directors. Except the averment made in the complaint that the directors including the present petitioner (who is arraigned as accused no.3) were in charge of and responsible for the conduct and day to day business of the company, nothing has been stated in the complaint as to what part was played by the petitioner herein after the date of his resignation and how he was associated and responsible even after tendering his resignation for the finances of the accused company or issuance of impugned cheque. There is also nothing to show that the petitioner had any control over the fund of the company, even after tendering the resignation letter. After coming across the unimpeachable and incontrovertible evidence, it indicates that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnation along with detailed reasons for the resignation to the Registrar within 30 days of resignation but this proviso is not mandatory. A resignation cannot be treated as not accepted by the Company simply because Director had not sent the copy of resignation to the Registrar within 30 days. Similarly, even after tendering resignation and the company even after receiving the same, if does not call meeting for its acceptance that also beyond the control of the petitioner and the petitioner cannot be held responsible for the same. 17. Above all a co-ordinate Bench of this High Court in a similar circumstances allowed the Application of the present petitioner for quashing on the ground that petitioner resigned from his directorship prior to issuance of the cheque being CRR 91 of 2022 and CRR 80 of 2022 with specific observation that the petitioner herein tendered his resignation on 13th March, 2020 which is prior to issuance of the cheque, involved in the said proceeding. Accordingly it has already been settled by the High Court that the resignation of the petitioner has become effective with effect from 13th March, 2020 and there is no scope to reopen the said issue again in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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