MRS. ANITA MALHOTRA versus APPAREL EXPORT PROMOTION COUNCIL & ANR.

Citation: [2011] 13 S.C.R. 76 · Decided: 08-11-2011 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
[2011] 13 (ADDL.) S.C.R. 76 
MRS. ANITA MALHOTRA 
v. 
APPAREL EXPORT PROMOTION COUNCIL & ANR. 
(Criminal Appeal No. 2033 of 2011) 
NOVEMBER 8, 2011 
[P. SATHASIVAM AND JASTI CHELAMESWAR, JJ.] 
Code of Criminal Procedure, 1973: 
c 
s.482 - Petition by a non-executive Director of a 
company for quashing of criminal proceedings against her for 
dishonour of cheques - On the ground that the alleged 
cheques were issued by the Company after she had resigned 
from the directorship - The petition dismissed by High Court 
0 - HELD: The copy of the statutory Form 32 filed with the 
Registrar of Companies, which was placed before the High 
Court, makes it evident that the petitioner had ceased to be 
a Director of the Company before t'Je cheques were issued 
on its behalf- Besides, the certified copy of the annual return 
E of the Company showing the details of its Directors and 
clearly showing that the petitioner was not its Director on the 
relevant date, was a/so placed before the High Court - High 
Court erred in ignoring the public documents - It ought to have 
exercised its jurisdiction uls 482 and quashed the 
proceedings against the petitioner who has made out a case 
F that she cannot be held responsible for dishonour of the stated 
cheques, as she had resigned from the directorship of the 
Company before the cheques were issued - Consequently, 
the criminal proceedings in so far as the petitioner is 
concerned, are quashed - Negotiable Instruments Act, 1881 
G - s. 138 - Companies Act, 1956 - ss. 159, 163 and 610, Form 
32 - Evidence Act, 1872 - s. 74. 
H 
Evidence Act, 1872: 
s. 74(2) - "Public records kept in any State of private 
76 
ANITA MALHOTRA v. APPAREL EXPORT 
77 
PROMOTION COUNCIL & ANR. 
documents" - HELD: A certified copy of annual return is a A 
public document - Companies Act, 1956 - ss. 159, 163 and 
610 - Negotiable Instruments Act, 1881 - s.138. 
Negotiable Instruments Act, 1881: 
s.138 - Complaint against a Director of a Company for 8 
dishonour of cheque - HELD: Such a complaint should 
specifically spell out how and in what manner the Director was 
in charge of or was responsible to the accused Company for 
conduct of its business; and mere bald statement, as in the 
instant case, that she was in charge of and was responsible C 
to the company for conduct of its business is not sufficient. 
The appellant, who had been a non-executive 
Director on the Board of a Company and had resigned 
from the directorship w.e.f. 31.08.1998 was issued a notice o 
dated 10.12.2004 by the respondents regarding 
dishonour of certain cheques issued on behalf of the 
Company. The appellant, by letter dated 15.12.2004, 
informed the respondents that she had resigned from the 
directorship of the Company long back in 1998. The E 
respondents filed a complaint uls 138 of the Negotiable 
Instruments Act in the Court of ACMM against the 
Company arraying the appellant as accused No.3. The 
appellant filed a petition before the High Court for 
quashing of the complaint pending in the Court of ACMM, 
F 
but the same was dismissed. 
Allowing the appeal, the Court 
HELD: 1.1 Inasmuch as the reply to the statutory 
notice contains specific information that the appellant G 
had resigned from the Company in 1998, the complainant 
was not justified in not referring the same in the complaint 
and in arraying her as accused No.3 in the complaint filed 
in the year 2005. [para 7] [83-D-E] 
H 
78 
SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R. 
A 
1.2 A perusal of statutory Form-32 (Annexure-P2J filed 
with the Registrar of Companies, makes it clear that with 
effect from 31.08.1998, the appellant ceased to be a 
Director since she had resigned from the directorship of 
the Company. Though the appellant was unable to 
B produce certified copy of the Form 32 as it was not 
available with the ROC, copy of Form 32 was placed 
before the High Court along with the receipt of filing with 
the Registrar of Companies. The High Court has ignored 
the said fact. [para 9] [84-E-H] 
c 
1.3 A reading of the provisions of ss.159, 163 and 
s.610 of the Companies Act, 1956, makes it clear that 
there is a statutory requirement u/s 159 of the said Act 
that every Company having a share capital shall have to 
file with the Registrar of Companies an annual return 
D which includes details of the existing Directors. The 
provisions of the Companies Act require annual return to 
be made available by a company for inspection [s.163]. 
The provisio

Excerpt shown. Read the full judgment & AI analysis in Lexace.