A Director who resigns before the issuance of cheques cannot be held liable under Section 141 of the Negotiable Instruments Act, requiring necessary averments in complaints for vicarious liability.

JUDGMENT

Mr. Pankaj Jain, J.

This bunch of petitions filed under Section 482 Cr.P.C. are being taken up together for adjudication as they involve identical question and are at the behest of the same petitioner.

2. Petitioner served as Director of respondent No.2/Company i.e. M/s Shiva Shakti Grains (India) Pvt. Ltd. In all the complaints filed against the said company which are subject matter of these petitions, the petitioner has been summoned to face trial for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act') being Director of the said company.

3. The issue raised in all these petitions by the petitioner is that he resigned as Director of the company on 2nd of January, 2012 and the cheques pertain to the year 2017 and thus he is not liable for offence punishable under Section 138 of the N.I. Act being Director of the company by invoking Section 141 of the N.I. Act.

4. The following table narrates the dates of the cheque in each of the petition:

5. In order to prove his resignation, the petitioner has placed on record Form No.32 which shows his date of resignation to be 2nd of January, 2012. Though the complainants have alleged in the complaints that the petitioner along with accused No.2 and 3 was in charge of and responsible for the conduct of the business of the company and its day to day affairs. However, the question is: 'Whether in the light of Form 32 placed on record which shows that the petitioner resigned from the Company on 2nd of January, 2012, the petitioner can be held to be liable by invoking Section 141 of the N.I. Act?. The issue is no more res integra.

6. After visiting the whole set of precedents Apex Court in the case of Gunmala Sales Private limited v. Anu Mehta, (2015) 1 SCC 103 held as under:

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33. We may summarise our conclusions as follows :

a) Once in a complaint filed under Section 138 read with Section 141 of the NI Act the basic averment is made that the Director was in charge of and responsible for the conduct of the business of the company at the relevant time when the offence was committed, the Magistrate can issue process against such Director;

b) If a petition is filed under section 482 of the Code for quashing of such a complaint by the Director, the High Court may, in the facts of a particular case, on an overall reading of the complaint, refuse to quash the complaint because the complaint contains the basic averment which is sufficient to make out a case against the Director.

c) In the facts of a given case, on an overall reading of the complaint, the High Court may, despite the presence of the basic averment, quash the complaint because of the absence of more particulars about role of the Director in the complaint. It may do so having come across some unimpeachable, uncontrovertible evidence which is beyond suspicion or doubt or totally acceptable circumstances which may clearly indicate that the Director could not have been concerned with the issuance of cheques and asking him to stand the trial would be abuse of the process of the court. Despite the presence of basic averment, it may come to a conclusion that no case is made out against the Director. Take for instance a case of a Director suffering from a terminal illness who was bedridden at the relevant time or a Director who had resigned long before issuance of cheques. In such cases, if the High