IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. 54705-M of 2007 (O/M). Date of Decision : July 22, 2009. Amar Upadhyaya son of Sh. Harshad Upadhyaya r/o Raj Classic Building, 9th Floor, Yari Road, Varsowa, Mumbai. ...... Petitioner . Versus. Sandeep Bamal s/o Shri Inder Singh resident of H.No. 1316-A, H.B.C. Sector-15-A, Hisar, Tehsil and District Hisar, Haryana . ..... Respondent . CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. Girish Agnihotri, Senior Advocate, with Mr. Vijay Pal, Advocate, for the petitioner. Mr. Sunil Saharan, Advocate, for the respondent. AUGUSTINE GEORGE MASIH, J. (ORAL). In the present petition, the challenge is to the proceedings initiated against the petitioner on a criminal complaint filed under Section 138/141 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”), and Section 420 I.P.C. against the petitioner-Amar Upadhyaya, Akshay Thakkar, and Star Plus Network. Counsel for the petitioner submits that Amar Upadhyaya (petitioner herein) was the Director of the Company till he submitted his resignation on 23.12.2003, copy whereof has been appended as Annexure-P-2. Intimation to this effect was duly sent by the Company to the Registrar of Companies, vide letter dated 23.12.2003. On having been complied with statutory requirements, the petitioner ceased to be the Director of the Company and, therefore, did not have any role to play as far Criminal Misc. No. M-54705-M of 2007. as managerial role of the company is concerned. As per allegation in the complaint dated 26.05.2007, copy whereof has been appended as Annexure- P-4, wherein it has been mentioned that the accused No. 2 (petitioner) being Chief Managing Director of the Company is conducting the business of the Company. The basis for proceeding under Section 138 of the Act read with Section 141 of the Act and Section 420 I.P.C. his cheque bearing No. 015500 dated 15.11.2006 issued by I.C.I.C.I. Bank, Mumbai, payable at all branches of I.C.I.C.I. Bank Limited in India for an amount of Rs. 3,07,000/-. Counsel for the petitioner on the basis of this factual position submits that having ceased to be Director of the Company after intimation having been sent to the Registrar of Companies as per statutory requirements on 23.12.2003, he cannot be said to be an officer of the Company, conducting the business of the Company and, therefore, cannot be proceeded against as per complainant's assertions in his complaint dated 26.05.2007. Counsel for the respondent on the other hand contends that the petitioner is still holding stake in the Company as he has entered into an agreement for royalty and is being regularly paid on the basis of the said agreement. He submits that in view of this position, it cannot be said that he is not associated with the Company and the allegations made against him in the complaint are false or not sustainable. Royalty agreement has been placed on record as Annexure-P-6 with the petition. I have heard counsel for the parties and have gone through the records of the case. The petitioner has admitted that he was the Director of the Company till he resigned on 23.12.2003. The intimation of resignation of the petitioner from the Directorship of the Company, which was accepted by -2- Criminal Misc. No. M-54705-M of 2007. the Company, was sent to the Registrar of Companies on 23.12.2003 itself. On his resignation all the statutory requirements having been fulfilled, the petitioner ceased to be Director of the Company. The petitioner was, thus, not holding any post, which would have any relationship with day-to-day business of the Company. The agreement dated 16.01.2004 (Annexure-P-6), reliance whereof has been made by counsel for the respondent to contend that he still has connection with the Company. When seen clearly stipulates in Clause 3(a) that the petitioner will neither be a shareholder nor a director of the company during the term of this agreement. In view of specific clause in the agreement, the doubt, if any, with regard to petitioner being Director of the Company, is totally wiped off. The cheque, which is the basis of filing the complaint is dated 15.11.2006 on which date the petitioner was not a Director of the Company what to say Chief Managing Director as alleged by the complainant. In view of the above, complaint dated 26.05.2007 (Annexure-P- 4) filed against the petitioner-Amar Upadhyaya, cannot be sustained as the facts mentioned above and further when the factum of resignation of the petitioner dated 23.12.2003 and intimation to Registrar of Companies have not been denied by the respondent/complainant. Accordingly, the present petition is allowed. Complaint dated 26.05.2007 (Annexure-P-6) qua the petitioner -Amar Upadhyaya is hereby quashed. (AUGUSTINE GEORGE MASIH) JUDGE July 22, 2009. sjks. -3-