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TMI Blog2025 (1) TMI 1431X X X X Extracts X X X X X X X X Extracts X X X X ..... gnation. (b) The role played by the petitioner has not been averred in the petition of complaint by making specific averments to that effect, specially when the petitioner in reply to opposite party's demand notice had clearly answered that he resigned prior to the issuance of the cheque. In the above context it was necessary for the opposite party to make specific averment in the plaint as to how and it what manner the present petitioner was responsible for the conduct of the business of the accused/company at the time of commission of offence. 3. The gist of allegation made in the complaint pertains to dishonour of a cheque bearing no. 000427 dated 04.03.2021 for an amount of Rs. 10,00,000/- 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 5th March, 2021. The complainant company issued a demand notice dated 12.03.2021 through its advocate calling upon the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.2017 in criminal Appeal no. 1734 of 2017 (SLP (Cri) 5905 of 2015) was pleased to set aside the said order considering the relevant date appearing in Form No. 32 (Presently Form DIR -12 as per companies Act 2013) as the effective date from which the appellant therein no longer associated with the affairs of the company. Accordingly he argued that in facts and circumstances of the present case, the date disclosed in Form DIR -12 would be pertinent to determine the effective date of resignation and/or the effective date from which an individual 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 judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited. (g) 2024 SCC Online SC 311, Susela Padmavathy Amma Vs. Bharti Airtl Limited. (h) 2014 SCC Online P&H 19871, Naendra Kumar Suri and others Vs. M/S Narendra Polymers Pvt. Ltd. (i) 2019 SCC Online Bom 2294, Shehzad Valimohammad Merehant Vs. Saiyed Gohulam Abbas zaidi land another. (j) (2017) 15 SCC 661 D.B. Negandhi Vs. Registrar of Companies (k) (2021) 12 SCC 1, S.Kasi Vs. State through Inspector of police, Samayhallur Police Station, Madurai District. 11. Mr. Meghnath Dutta Learned Counsel appearing on behalf of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the company for the conduct of its business or if it is proved that the offence was committed with the consent or connivance of concerned Director or was attributable to any negligence on the part of the Director concerned. It is also settled law that to attract case under section 141 of the N.I. Act, a specific role must have been played by a director of a company for fastening vicarious liability, but in this case when the offence was allegedly committed the petitioner herein was neither a Director of the accused company nor in charge 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany as early as possible and at the latest in annual general meeting. 15. 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. 16. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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