Roshan Dalvi, J.

1. These matters arise out of the Reference made by the learned Single Judge of this Court dated 24th September 2008 upon the question of law relating to the resignation of a Director of a Limited Company or a private Limited Company registered under the Companies Act, 1956 in a criminal proceeding initiated against such Director of such Company under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (the Act).

2. The Petitioners in each of these Petitions are one of the Directors of the Company by name Enbee Infrastructure Limited (the Company) which availed of and obtained a loan from Respondent No.2 herein. The loan agreement was entered into on 29.12.1999 between the Company and Respondent No.2. The loan agreement has been signed by one of the Petitioners in these Petitions who has been arraigned as accused No.9 in the criminal complaint. Pursuant to the execution of the loan agreement and obtaining the loan from Respondent No.2, the Company through its Director/authorized signatory issued several post dated cheques (PDCs). Some of the cheques came to be dishonoured. Hence, a complaint under Section 138/141 of the Act came to be filed in the relevant Magistrate’s Court upon following the procedure prescribed by law in that behalf by Respondent No.2. Several Directors of the Company have been made accused in the complaint along with the Company itself. The Petitioners in these Petitions are two of those Directors arraigned as accused Nos.6 and 9 therein.

3. Both the Petitioners claim to have resigned as Directors of the aforesaid Company before the relevant PDCs previously signed on behalf of the Company, came to be dishonoured. It is the case of the Petitioners that the cause of action accrued upon the dishonour of the cheques. On the date of the dishonour of the cheques, they were not Directors of the Company. They had already resigned prior to that date. They were, therefore, not the persons in control and management of the Company or in-charge of the day to day affairs of the Company. They cannot, therefore, be held liable under Section 138 read with Section 141 of the Act, consequent upon their resignation as Directors of the Company.

4. The Petitioners have produced certified copy of Form No.32 issued by the Registrar of Companies (ROC) in support of their case that they have resigned as Directors. It is their case that the said certified copy of Form No.32 is the proof of their resignation and no further inquiry can be made by the Court about the factum of the resignation. They have applied for quashing the criminal complaint against them consequent upon the said document having been issued by the ROC.

5. Though we are concerned only with the Reference, which is a question of law to be considered, a few dates and events of the transaction between the parties would be material to appreciate the liability of the Directors, as agents of the Company who acted on behalf of the Company and incurred liability as such.

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6. It can be seen that whereas accused No.6 is shown to have resigned from 20.7.1999, a year prior to the execution of the agreement of loan, accused No.9 is shown to have resigned a week after the aforesaid progress report was submitted by him and within a year of entering into the agreement for loan as well as registering the charge. Accused No.9 has acted as Director of the Company in getting the loan sanctioned, in registering the charge of the immovable property of the Company as well as in submitting the progress report required by Respondent No.2. The PDCs are stated not to have been signed by accused No.9, but by another person as authorised signatory for issue of cheques. The PDCs duly signed were given by the Company to Respondent No.2 when the loan transaction was entered into. The liability on the PDCs did not commence from that date. It would commence each month on separate cheques which were post-dated.

7. A Limited Company acts throu