V.K. JAIN, J. (Oral)

1. By this common judgment, I shall dispose of all the six petitions referred above. Criminal complaints under Section 138 of Negotiable Instrument Act were filed by the respondent against M/s.Sakura Seimitsu India Limited and seven others including the petitioners M.L. Gupta, Rajiv Gupta and Sanjeev Gupta. The allegation against the petitioners was that they were the Chairman, Managing Director and Director respectively of the company and were the persons in charge of and responsible to the company for conduct of its business at the time of commission of the offence.

2. The petitioners were summoned by the learned Metropolitan Magistrate under Section 138 of the Negotiable Instrument Act r/w Section 141 thereof. The petitioners are seeking quashing of the complaint on the ground that they had resigned from the Directorship of the company much prior to the date(s) on which cheques in question were presented to the bank for encashment. The petitioners have placed on record certified copies of Form 32 issued by Registrar of Companies, which would show that the petitioner M.L. Gupta had resigned from Directorship on 4th September, 1997, whereas the petitioner Rajiv Gupta resigned on 5th June, 1998.

3. Sanjeev Gupta, who is petitioner in Criminal M.C. No.1317/2009, Criminal M.C. No.1318/2009, Criminal M.C. No.1320/2009 and Criminal M.C. No.1321/2009, has not filed certified copy of Form 32 though he has placed its photocopy on record. He, however, has placed on record copies of the judgments of this Court in Crl.M.(M).242 of 1999 titled as “Sanjeev Gupta Vs. The State of Delhi & Another”, decided by Hon’ble Mr. Justice Dalveer Bhandari, on 11th of July, 20000 and Crl.M.C.1056/2003 to 1058/2003, titled as “Sanjeev Gupta Vs. The State of Delhi & Another”, decided by Hon’ble Mr.Justice A.K.Sikri on 23rd of August, 2006. The case of the petitioner Sanjeev Gupta is that he had resigned as a Director of the Company on 25th of September, 1995. This factual position was accepted by this Court in Crl.M.(M).242/1999, as is evident from paragraph 2 of the order, though the order does not indicate the name of the Company from directorship of which he resigned with effect from 25th of September, 1995. However, a perusal of the order of this Court in Crl.M.C.1056/2003 to 1058/2003 dated 23.8.2006, would show that DCM Financial Services Limited, which is the respondent in the present petition, was respondent No.2 in those cases as well. It further shows that the petitioner Sanjeev Gupta claimed in those petitions that he was a Director of M/s.Sakur Seimitsu India Limited up to 25th September, 1995 when he left India for overseas assignments. He placed on record copy of Form No.32 issued by the Registrar of Companies. Accepting his claim, this Court quashed the complaints filed against him under Sections 138 of the Negotiable Instruments Act. Thus, in another proceedings between Sanjeev Gupta and the respondent DCM Financial Services Limited, this Court accepted his claim of having resigned from the Directorship of M/s.Sakura Seimitsu India Limited with effect from 25th of September, 1995.

4. There are five essential ingredients of offence under Section 138 of the Negotiable Instruments Act, (i) drawing of the cheque, (ii) presentation of the cheque to the bank of the payee, (iii) return of the cheque unpaid by the drawee bank, (iv) giving of notice to the drawer of the cheque demanding payment of the cheque amount and (v) failure of the drawer to make payment within 15 days of the receipt of the notice.

5. The learned counsel for the respondent DCM Financial Services Limited fairly concedes that the cheques subject matter of all these complaints were presented to the Bank much after the petitioners M.L.Gupta, Rajiv Gupta and Sanjeev Gupta claim to have resigned from the directorship of the Company M/s.Sakur Seimitsu India Limited. Since they had already resigned from the directorship of Company bef