Division Bench Reference was made in the case of Suhas Bhand Vs. State of Maharashtra & anr. (Criminal Writ Petition No.1194 of 2008) (18-8-2009) (B.H. MARLAPALLE, SMT.ROSHAN DALVI, JJ.), upon the question of law relating to the resignation of a Director of a Limited Company or a private Limited Company in a criminal proceeding initiated against such Director of such Company under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881. Considering the various case laws the Hon'ble Bombay High Court made the following legal propositions with regard to the resignation of a Director of a registered Company - (i) If the accused in a criminal prosecution under Section 138 of the Negotiable Instruments Act produces a certified copy of Form No.32 certified by the ROC and there is no dispute of the factum of his resignation, the accused is entitled to be discharged from the prosecution. (ii) If his resignation is not accepted or admitted by the complainant upon production of the certified copy of Form No.32, the accused would have to prove the truth of the contents of the said certified copy i.e. the factum of his resignation. Such accused cannot be discharged simplicitor upon production of a certified copy of Form No.32. (iii) If the complainant produces any evidence showing the continuance of the accused as Director of the Company after the date of the resignation claimed by him as per the certified copy of Form No.32 produced by him, such accused cannot be discharged simplicitor upon production of such certified copy of Form No.32. He would have to lead evidence to prove the factum of his resignation. Similarly the complainant would be entitled to prove the factum of his continuing as Director. The trial under Section 138 read with Section 141 of the Negotiable Instruments Act would, therefore, proceed.
