By Dr. K. Shivaram, Ajay R. Singh, Advocates
fiogf49gjkf0d
The first accused “M/s. Subhiksha Trading Services Ltd” is a company incorporated under the Companies Act of 1956. The complainant is a banking company. A complaint was filed against a company and its directors for an offence punishable under sec. 138 of the Negotiable Instruments Act, 1881. The petitioner, who was one of the accused, filed a petition u/s. 482 of the Code of Criminal Procedure, 1973, contending that (i) she was a nominee director who had submitted her resignation prior to issuance of the cheque which had been dishonoured; (ii) that the shareholder company which had nominated her to the board of directors of the accused – company had sent the letter of withdrawal to the accused company as well as to the Registrar of Companies, which was acknowledged; (iii) that she had also intimated her resignation to the board of directors of the accused company; and (iv) that there was absence of specific averments as to how she was in charge of day to day affairs of the company;
The Honourable Court observed that under the articles of association, the shareholder company had the right to withdraw its nominee. The moment the nomination was withdrawn, the withdrawal became effective and the nominee director ceased to be a director of the company. From the letter of withdrawal sent to the first accused company and the letter of information sent to the Registrar of Companies, it had been prima facie proved by means of unimpeachable documents that the petitioner was not a nominee director of the first accused company on or after 8th January, 2009. Therefore, she was not liable for punishment u/s. 138 of the 1881 Act for the offence said to have been committed by the company subsequent to the date of withdrawal. The Court further observed that resignation of a director will take effect from the moment the resignation letter is sent and it is later on acknowledged by the company.
The question of resigning from the office of director will arise, only if, the person happens to be a director and not a nominee director. If he is a nominee director, he is primarily responsible for the company which nominated him. He may send his resignation to the company which nominated him and even without any such resignation letter, the company which nominated him will be at liberty to withdraw his nomination. In either event, if a resignation letter is submitted by a nominee director to the company which nominated him, thereafter it is for that company to act upon it and to withdraw the nomination of the nomination of the nominee director. As there is no provision for resignation by the director, there is no provision for withdrawal also in the Companies Act, 1956. But such withdrawal is governed by the memorandum and articles of association.
Renuka Ramanath vs. Yes Bank Ltd. (2012) 174 Comp. Cas 465 (Mad.)
