- (1.) This is an application under Section 482 of the Code of Criminal Procedure, 1973 praying for quashing of the proceedings of Case No.C/2012 of 1997 under Sections 138 /141 of the Negotiable Instruments Act pending before the Court of the learned Metropolitan Magistrate, 9th Court at Calcutta.
(2.) The petitioners case, in short, is that the authorized representative of M/s. Magma Leasing Limited (O. P. No.2) filed a petition of complaint being case No.C/2012 of 1997 under Sections 138/141 of the Negotiable Instruments Act against M/s. Western Paques India Limited, one Nandan Gadgil being chairman and managing director of said company and six others 2 including the present petitioner D. M. Kulkarni as directors and/or officers of said company. It is the specific case of the petitioner that he resigned from the post of the directorship of M/s. Western Paques India Limited with effect from 8th April, 1996 and that the company also sent an information to that effect to the registrar of companies on 7th of May, 1996 through Form-32. According to the petitioner the cheque was alleged to be drawn on 26th of June, 1997 being dishonoured on 2nd of April, 1997. As either on the date of issuance of cheques or its alleged dishonour the present petitioner was no longer a director of the accused company he was not liable for any criminal liability for said alleged dishonour of cheque. His further contention is that the petition of complaint did not contain necessary and specific averments against the present petitioner being an alleged director of the accused No.1 company to attract vicarious liability under Section 141 of the Negotiable Instruments Act.
(3.) Mr. Ayan Bhattacharyya appearing for the petitioner accused submits that from the certified copy of the Form-32 it is apparent that the present petitioner 3 resigned from the directorship of accused No.1 company with effect from 8th April, 1996 and that it was filed by the chairman and managing director of said company on 7th of May, 1996 through Form-32. According to him, as the cheque in question was alleged to be issued on 26th of June, 1997 and was dishonoured on 2nd of July, 1997 i.e., much after said resignation of the petitioner accused from the directorship of the accused No.1 company, the petitioner is entitled to get an order of quashing of said criminal case so far as the present petitioner is concerned. In support of his contention he has referred a case law Harshendra Kumar D v. Rebatilata Koley., 2011 AIR(SC) 1090 In said case it was held by Honble Apex Court at para 15 as follows:- "Every company is required to keep at its registered office a register of its directors, managing director,manager and secretary containing the particulars with respect to each of them as set out in clauses (a) to (e) of sub-section (1) of Section 303 of the Companies Act, 1956. Sub-section (2) of Section 303 mandates every company to send to the Registrar a return in duplicate containing the particulars specified in the register. Any change among its directors, managing directors, managers or secretaries specifying the date of change is also required to be furnished to the Registrar of Companies in the prescribed form within 30 days of such change. There is, thus, statutory requirement of informing the Registrar of Companies about change among directors of the company. In this view of the matter, in our opinion, it must be held that a director whose resignation has been accepted by the company and that has been duly notified to the Registrar of Companies - cannot be made accountable and fastened with liability for anything done by the company after the acceptance of his resignation. The words every person who, at the time the offence was committed, occurring in Section 141(1) of the NI Act are not without significance and these words indicate that criminal liability of a director must be determined on the date the offence is alleged to have been committed.";