Directors who have resigned cannot be held liable for cheques issued after their resignation unless specific allegations of responsibility are made.

ORDER :

Anil Kumar Upman, J.

1. These misc. petitions under Section 482 Cr.P.C. have been preferred by the petitioners herein for quashing of proceedings of complaint No.10057/14, filed under Section 138 of the Negotiable Instrument Act, 1881 (in short the ‘NI Act’) by respondent No.2, before learned Judicial Magistrate, No.2, Gangapur City, Sawaimadhopur.

2. It is the case of the petitioners and so contended by their counsel that the proceedings have been initiated by respondent No. 2 against the petitioners before the learned Trial Magistrate, under Section 138 of the N.I. Act purportedly on the ground that petitioners were active Directors in Neesa Leisure Ltd., (hereinafter referred to as "the company") where respondent No.2 made two fixed deposits on 12.09.2013 and 21.09.2013 of Rs.4,00,000/- (Four Lakh Rupees) each. According to him, cheque bearing No. 032149 dated 11.03.2014 for an amount of Rs. 4,00,000/- (Four Lakh Rupees) was issued by one Manoj Singhal, who happens to be Managing Director of the company and another cheque bearing No. 056468 dated 20.03.2014 for an amount of Rs. 4,00,000/- (Four Lakh Rupees), was issued by authorized officer of the company. The said cheques were dishonored and returned to the complainant's banker with remark 'insufficient funds'. As per the complaint submitted by respondent No.2, the both the cheques were purportedly issued by Manoj Singhal, Managing Director of the Company and authorized officer of the Company respectively in discharge of the legally enforceable liability towards him.

3. It is submitted that Smt. Neelu Gupta and Shri Pankaj Anand Mudholkar, petitioners herein, ceased to be Directors in the said company, on 22.03.2013 and 25.06.2013 respectively which is at least a year prior to the issuance of the cheques in question. After resignation from the company, petitioners were not responsible for the acts of the company as they were not concerned at all with the affairs of the company. The resignations of the petitioners were also notified to the Registrar of Companies/Ministry of Company Affairs (herein after referred to as “MCA” for brevity) by the Managing Director of the Company by way of filing Form 32 and same is a public document.

4. According to counsel for the petitioners, respondent No. 2 has suppressed these publicly available documents by not filing these documents along with the complaint against the petitioners. He submits that the Company's Master Data available on the website of MCA also does not reflect the name of the petitioners as Directors. However, the learned Trial Magistrate in a mechanical manner only by considering averments made by the complainant in the complaint took cognizance of the offence under section 138 of N.I. Act and issued process without applying any judicial mind and without recording any satisfactory reasons as to whether prima facie offence under Section 138 of the N.I. Act is made out against the petitioners or not for issuing process.

5. He submits that legal notice dated 03.04.2014 allegedly sent by the respondent No. 2, was never received by the petitioners as they were not available on the said address i.e. address of the company. It is also to be noted that no tracking report was filed by respondent No.2 before the learned Trial Magistrate showing that the said notice was delivered to the petitioners. Even the averments made in the complaint filed by respondent No. 2 are sketchy and in no way demonstrate how the complaint is maintainable against the petitioners. The essential ingredients for maintaining a complaint under Section 138 of the NI Act are totally lacking and absent with respect to the petitioners. It is submitted that respondent No. 2 has failed to show in what manner and how the petitioners were responsible for the affairs of the company. The issuance of summons was contrary to the settled position of law in terms of the judgments of the Supreme Court and Delhi High Court which are referred as under:

(i) Harshendra Kum