IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 10.02.2010 CORAM THE HONOURABLE MR. JUSTICE C.T.SELVAM CRL.O.P.No.37678 of 2004 and M.P.No.11844 of 2004 G.D.Nataraj Babu ...Petitioner -Vs- M/s.Bharat Traders represented by its Power of Attorney Agent Mr.Murali ...Respondent Criminal Original Petition filed under Section 482 of Criminal Procedure Code to call for the records and quash the proceedings in C.C.No.7179 of 2002 on the file of the VII Metropolitan Magistrate, George Town, Chennai in so far as the petitioner/ accused 5 is concerned. For Petitioners : Mr.S.Karthikeyan For Respondent : Mr.Raghunathan ***** O R D E R The petitioner who is the 5th accused and who faces prosecution for offence under Sections 138 and 141 of the Negotiable Instruments Act (hereinafter referred as Act) in C.C.No.7179 of 2002 on the file of the VII Metropolitan Magistrate, George Town, Chennai has preferred this petition to quash proceedings against him. 2.In the complaint case, there are five accused. The 1st accused being a company, the 2nd accused being the Chairman, the 3rd accused, the Managing Director and the accused 4 and 5, the directors thereof. On the dishonour of a cheque issued by the 1st accused company in a sum of Rs.2,23,209/- which was presented for payment on 16.10.2002, the respondent/complainant had followed the procedure envisaged under Section 138 of the Act and preferred the complaint before the lower Court. It is also seen from the complaint that the petitioner was the signatory of the cheque which gave rise to the complaint case. 3.The learned counsel for the petitioner submits that the petitioner/5th accused herein who was a Director of the 1st accused company had resigned from such capacity as early as on 24.08.2000 and has produced for perusal of this Court the certified copy of Form-32 filed with the Registrar of Companies in support of such contention. The contention is that when the petitioner has resigned much prior to the issue of the cheque, he cannot by any stretch of reasoning be held to be responsible to the 1st accused company in the conduct of its affairs and as such he could not be arrayed as an accused through recourse to the provisions of Section 141 of the Act. 4.As against the contentions of the learned counsel for the petitioner, the learned counsel for the respondent submits that despite Form-32 filed on behalf of the petitioner reflecting the position that the petitioner has resigned from directorship of the 1st accused company on 24.08.2000, the factual position was that he continued to deal with the affairs of the company and it was well possible that he might be reinducted as a director on a subsequent date. The learned counsel relied on the decision of the learned Single Judge of this Court in K.Umadevi v. V.Manikandan 2006(1) CTC 662 and order of this Court in Crl.O.P.Nos.16360, 16361 and 16362 of 1999 dated 12.04.2001. 5.I have considered the rival submissions. 6.As rightly contended by the learned counsel for the petitioner and as held by this Court in Mrs.S.Valliammal v. Omprakash and others 2008 (1) MWN (Cr.) DCC 46, so too in this case, 'the genuineness of Form-32 produced by the petitioner is not in question. It is not disputed that Form-32 is a public document. When it is admitted that Form-32 is a public document, it cannot be said that the resignation of the petitioner from the company is a special circumstance, which is within the exclusive knowledge of the petitioner.' 7.The Honourable Apex Court in DCM Financial Services Limited v. J.N.Sareen and another (2008) 8 SCC 1 has held as follows: "Although, therefore, it may be that as an authorised signatory he will be deemed to be person in- charge, in the facts and circumstances of the case, we are of the opinion that the said contention should not be permitted to be raised for the first time before us. A person who had resigned with the knowledge of the complainant in 1996 could not be a person in charge of the Company in 1998 when the cheque was dishonoured. He had no say in the matter of seeing that the cheque is honoured. He could not ask the Company to pay the amount. He as a Director or otherwise could not have been made responsible for payment of the cheque on behalf of the Company or otherwise." 8.For the reasons stated by the learned Single Judge of this Court in the decision cited supra, the complainant would be deemed to have had notice of the resignation of the petitioner from the directorship of the 1st accused company since Form-32 is a public document. In decision reported in Rukmini Narvekar v. Vijaya Satardekar and others (2008) 14 SCC 1, the Honourable Apex Court has held that "it cannot be said as an absolute proposition that under no circumstances can the Court look into the material produced by the defence at the time of framing of the charges though it should be done in very rare cases i.e., where defence produces some material which convincingly demonstrates that the whole prosecution is totally absurd or totally concocted." 9.In the instant case, it cannot be said that the complaint case is totally absurd or concocted. Even so, this Court in dealing with a petition under Section 482 Cr.P.C, is exercising a wholesome power and when a document of sterling quality such as a certified copy of Form-32 filed with the Registrar of Companies is produced, this Court would not ignore the same and would act thereupon and grant relief if not otherwise unwarranted. 10.In the decision K.Umadevi v. V.Manikandan 2006(1) CTC 662 cited by the learned counsel for the respondent, it is seen that what was produced before the Court was a xerox copy of Form-32 and the learned Single Judge in the circumstances of the case was pleased to observe that in certain cases, the Form-32 which was produced in proof of resignation from directorship turned out to be false or a fabricated one and that where the complaint has specifically averred that the particular accused was one of the Directors and responsible for conduct of business affairs of the accused company, then where the accused disputed such fact, the matter would be one for trial. In the other decision cited by the learned counsel viz., order in Crl.O.P.Nos.16360, 16361 and 16362 of 1999 dated 12.04.2001 the learned Single Judge has held that where the complaint contains the specific pleading that the petitioners before the Court were responsible for the conduct of the business of the 1st petitioner company, it would be for the trial Court to consider the defence thereagainst. 11.This Court would allow this quash petition for the reason that the fact of the petitioner having resigned from the directorship of the company long prior to the arising of the cause of action stands substantially established. The decisions cited by the learned counsel for the respondent would really not help his case in view of the findings of the Honourable Apex Court in DCM Financial Services Limites v. J.N.Sareen and another (2008) 8 SCC 1. Further in SMS Pharmaceuticals v. Neeta Bhalla and another, 2005 (5) CTC 65: 2005(4) Crimes 34, the Honourable Supreme Court has held that to sustain the complaint against one who merely was a Director, it is necessary to specifically aver in the complaint that at the time the offence was committed, the person accused was incharge of and responsible for the conduct of the business of the company. On perusal of the complaint in the present case, we find that the same does not contain such necessary averment. 12.For the reasons above stated, the Criminal Original Petition is allowed. Accordingly, the proceedings in C.C.No.7179 of 2002 on the file of the VII Metropolitan Magistrate, George Town, Chennai in so far as the petitioner/accused 5 is concerned shall stand quashed. Consequently, the connected miscellaneous petition is closed. gm To The VII Metropolitan Magistrate, George Town, Chennai