IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1270 OF 2000. WRIT PETITION NO.1270 OF 2000. WRIT PETITION NO.1270 OF 2000. Shri Subhash Chandra. ..Petitioner. versus CEAT Financial Services Ltd. & Ors. ..Respondents. WITH CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1271 OF 2000. WRIT PETITION NO.1271 OF 2000. WRIT PETITION NO.1271 OF 2000. Shri Subhash Chandra. ..Petitioner. versus CEAT Financial Services Ltd. & Ors. ..Respondents. .... Mr. V.M. Thorat, for the Petitioner. Mr. J.P. Yagnik, APP for Respondent-State. None present for other Respondents. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 15TH JULY,2008. : 15TH JULY,2008. : 15TH JULY,2008. ORAL ORAL ORAL JUDGMENT : JUDGMENT : JUDGMENT : 1. The submissions of the learned counsel appearing for the petitioner were heard yesterday. None appeared for the first respondent when the submissions were heard yesterday. Today when the petitions are called out, none appears for the first respondent. 2. It will be necessary to refer to the facts of the case in brief. The petitioner in these petitions has been arraigned as an accused in private complaints filed by the first respondent against the second respondent and other accused alleging commission of offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ’the said Act’). According to the case made out by the first respondent in the complaints, the second to sixth accused persons are the Directors of the first accused company. According to the case of the first respondent, the second respondent accused company had issued cheques in favour of the first respondent in discharge of legal liability and the cheques were dishonoured. It is alleged that the accused nos.2 to 4 who are the Directors of the second respondent company and who are responsible for management of the said company, had issued the said cheques in favour of the first respondent for discharging their liabilities. In the complaint which is the subject matter of criminal writ petition no.1270/2000, the cheque was issued on 24th August 1996, and in the complaint which is the subject matter of criminal writ petition no.1271/2000, the cheque was issued on 24th May 1996. In the first petition, the cheque was returned alongwith return memo dated 27th August 1996 and in the second complaint, the cheque was returned alongwith the return memo dated 27th May 1996. 3. On both the complaints, the learned Magistrate issued process. The present petitioner who was arraigned as the accused no.3 in the complaints filed discharge applications on the ground that he had ceased to be a Director of the second respondent company with effect from 9th April 1996 and necessary intimation in Form 32 was filed on 22nd April 1996. The said applications were rejected by the learned Trial Judge. The learned Trial Judge observed that the intimation in form 32 was received by the Registrar of Companies on 3rd March 1999. Revision applications were filed by the petitioner before the Sessions Court for challenging the order issuing process. The revision applications have been dismissed by the learned Sessions Judge. 4. The learned counsel appearing for the petitioner has invited my attention to a xerox copy of the certified copy of form no.32 dated 22nd April 1996. He has invited my attention to the endorsement on the said form. He also invited my attention to a communication dated 12th April 2000 issued by the Deputy Registrar of Companies, Maharashtra, Mumbai clarifying that form no.32 dated 22nd April 1996 was filed on 22nd April 1996 itself. He placed reliance on a decision on learned Single Judge of this Court in the case of Amit Mohan Inder Mohan Sharma v/s. M/s. Mamta Agency & others, [2007 (3) Mh.L.J. 198]. He also placed reliance on a decision of the Apex Court in the case of SMS Pharmaceuticals Ltd. v/s. Neeta Bhalla and another [2005 (4) Cr.L.J. 4140]. He submitted that in view of the fact that the petitioner ceased to be a Director of the company from 9th April 1996, process could not have been issued against the petitioner on the basis of dishonour of cheques dated 24th May 1996 and 24th August 1996. 5. I have carefully considered the submissions. It will be necessary to refer to a copy of form no.32. It records that the petitioner has tendered his resignation as a Director of the second respondent company with effect from 9th April 1996. Reliance has been placed on receipt dated 22nd April 1996 evidencing payment of fees of Rs.120/- alongwith form no.32. 6. It will be necessary to refer to the communication dated 12th April 2000 issued by the Deputy Registrar of Companies, which is annexed to the petition. The relevant part of the communication reads thus :- . "In the matter of M/s. Singhal Swaroop Ispat Limited, regarding the filling of Form No.32:- . With reference to your letter dated 18/03/2000 received alongwith Hon’ble Court dated 31.01.2000 on the above subject I am to inform you that the company had filed Form No.32 dated 22.04.96 under the signature of Mr. N.K. Agrawal, Dy.Company Secretary showing the concession of Mr.S.K. Bhuwalka, Mr. Subhash Chandra, Mr. Vinod Agrawal, and Mr. Jagdish V. Doshi w.e.f. 09/04/96 on 22.04.96 vide Receipt No.67473 dated 22.04.96 and not on 03.03.99." . As pointed out earlier, the learned Magistrate has observed in his order dated 31st January 2000 that form no.32 was submitted on 3rd March 1999 and not on 22nd April 1996. The said observation is obviously incorrect in view of the aforesaid document. It will be necessary to refer to the decision of the learned Single Judge in the case of Amit Mohan Inder Mohan Sharma (Supra). The learned Single Judge held that if a director tenders his resignation prior to issuance of the cheque, he will not be liable for the offence under section 138 of the said Act, if any, committed by the company. The learned Single Judge held that if evidence is produced on record to show that the Director had resigned before the date of issuance of cheque, such an accused cannot be asked to face the trial. 7. In the present case, there is a material on record to show that the petitioner ceased to be a Director of the second respondent company with effect from 9th April 1996 and form no.32 was filed with the Registrar of Companies on 22nd April 1996. In the circumstances, the petitioner cannot be asked to face the trial and therefore, the petitions must succeed. 8. Hence, I pass following order :- . (1) The order passed by the learned Magistrate of issuing process on the complaint filed by the first respondent is quashed and set aside. It is made clear that the said order is quashed and set aside only as against the petitioner. . (2) Rule is made absolute accordingly. . (3) There will be no orders as to costs. [ A.S.OKA, A.S.OKA, A.S.OKA, J.] J.] J.]