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TMI Blog2020 (5) TMI 266X X X X Extracts X X X X X X X X Extracts X X X X ..... and complaint is filed under Section 138 of the Negotiable Instruments Act against the company and its Directors after the company has already been ordered to be wound up. Whether such a complaint would be maintainable? - HELD THAT:- After the winding up orders and taking over the affairs of the company by the Official Liquidator since erstwhile the directors seized to be the directors as on the date of dishonour of the cheque because they were not in-charge of day to day affairs of the company. Offence is committed under Section 138 of the Act only on the dishonour of cheque amount and issuance of notice for demand of the cheque amount. As on that day, no such notice could be issued to the Company, which was in liquidation and the creditors is not to be paid as per the statute of the Companies Act, Therefore, the liability on them also cannot be fastened under Section 141 of the Negotiable Instruments Act, 1881. Interpretation of the expression fails to make payment - HELD THAT:- The drawer in the instant case would be a company, which has gone into liquidation and case of a company is on different footing and is governed by the statute, namely, the Companies Act. What is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ief Judicial Magistrate, Indore. The learned Magistrate took the cognizance against the applicants for the commission of offence punishable under Sections 138 of the NI Act, vide order dated 27/07/2018, which was got registered as Criminal Complaint No. 3732/2018 Feeling aggrieved with the aforesaid order of taking cognizance, the applicants have preferred the present petition before this Court. 3. Learned counsel for the applicants submitted that the company has gone in liquidation and before the date of issuance of notice under Section 138 of the NI Act, the Official Liquidator was appointed by the High Court, vide order dated 14/05/2018 and he had taken physical possession of the Company M/s Plethico Pharmaceuticals Ltd., thus, there was no chance that the applicants would have received the notice dated 23/05/2018. It is also submitted that the cheque issued by the company was returned by the bank as the bank account of the said company with Rajkot Nagrik Sahkari Bank Ltd., was put on hold by Income Tax Department, therefore, the applicants were not at fault for return of the cheque amount. It is further submitted that the applicants have no administrative or financial contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agrik Sahkari Bank Ltd. was issued by the company M/s. Plethico Pharmaceuticals Ltd in favour of the respondent. The said cheque was presented for encashment on 16/02/2018 and the same was dishonoured on 18/02/2018 with the note Income Tax Noticee . It is alleged that the respondent / complainant orally informed the Company regarding dishonour of the said cheque, then they asked the complainant for representation of the cheque in the second week of May 2018 so that it can be realized. Thereafter, on 11/05/2018, the complainant again presented the aforesaid cheque in his bank account for realization and the same got dishonoured with the remark other reasons or Income Tax Noticee . Then, the respondent/complainant issued a statutory notice to the applicants on 23/05/2018 and even after service of the notice, the applicants have not paid the cheque amount. However, the creditors of the Company viz. City Bank filed a writ petition No. 35/2013 before the M.P. High Court, Bench at Indore seeking winding up of the said company under the Provisions of Companies Act, 1956 on 17/09/2013. After hearing the parties, the said petition was admitted on 01/10/2014 and the Court has appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Official Liquidator had taken charge of the affairs of the company. However, in the aforesaid judgment, it is not clear that when the cheque was presented by the complainant for encashment and when it was got dishonoured, therefore, it cannot be said that this judgment is applicable in the facts of the present case. 11. The Division Bench of the Kerala High Court in Jose Antony Kakkad v. Official Liquidator 2000 Company Cases (Vol.100) 811 affirming the decision of the single Judge in Jose Antony Kokkad v. Official Liquidator (1999) 98 Company Cases 275 has categorically held as follows:- The expression other legal proceedings in Section 446 of the Companies Act, 1956, does not take in all proceedings and proceedings under a special Act have an overriding effect over the general provisions under the Companies Act. The object of winding up of a company by the Court is to facilitate the protection and realisation of its assets with a view to ensure an equitable distribution thereof among those entitled. Once the Court has taken the assets of a company under its control or has passed an order for its being wound up, in the ordinary course, it will not be prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere no orders for winding up of the company had been passed, as on the date when the complaint was filed. However, in the present case, the complaint has been filed after the company has already been ordered to be wound up. Thus, it is clear that the question involved in the aforesaid case was totally different from the facts of the present case. 14. Insofar as interpretation of the expression fails to make payment is concerned, the drawer in the instant case would be a company, which has gone into liquidation and case of a company is on different footing and is governed by the statute, namely, the Companies Act. 15. The observation made in paras referred to above are with a view to answer the aforesaid question, clearly indicates that such a complaint would not be maintainable when the cheque is presented after the company has already been ordered to be wound up. 16. The Hon'ble apex Court in the case of Anil Hada v. Indian Acrylic Ltd. 2000 Crl.L.J. 373, in paragraph No. 12 has held as under: 12. xxxxxxxxx The effect of reading Section 141 is that when the company is the drawer of the cheque such company is the principal offender under Section 138 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Board for winding up of the company under Sub-section (1) of Section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court. This exercise of the power by the Board is conditioned by the prescription that the Board is of the opinion that such a direction is necessary in the interest of the sick industrial company or its creditors or shareholders or in the public interest. In a case in which the BIFR has submitted its report declaring a company as 'sick' and has also issued a direction under Section 22-A restraining the company or its directors not to dispose of any of its assets except with consent of the Board then the contention raised on behalf of the appellants that a criminal case for the alleged offence under Section 138 NI Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright. Whether the contention can be accepted or not will depend on the facts and circumstances of the case. Take for instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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