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TMI Blog2020 (11) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... act as Director of the accused company and he was/is thus not in a position to pay or settle on behalf of the company. The primary liability of cheque bouncing in this case is of the accused drawer Company. All accounts are currently since under the control of a Interim Resolution Professional, it would not be fair to impose liability on a suspended Director of the Company. Under the Insolvency and Bankruptcy Code-2016,once an insolvency petition is admitted , the resolution process gets initiated. The existing management automatically gets suspended. The Interim Resolution Professional takes over the operations of the company. Under Section 25 of IBC the Resolution Professional is under mandate to protect and preserve the assets of the corporate debtor company . Subsequent thereto, the committee of creditor is required to submit a resolution plan for approval of the committee of creditors . After such approval, the resolution plan is presented to the Adjudicating Authority - In the premise, due to insolvency proceedings against the accused company and imposition of moratorium, two consequences arise, namely, (a) option to compound a cheque bounce is not available to its dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P/1) as to how the petitioner was responsible for the day to day affairs and management of the Company or otherwise personally responsible for an alleged debt of the company. 5. Para 3 to 5 of the impugned complaint contains material averments/allegations which read as under :- 3. That the accused approached the complainant for the grant of financial facilities as per his request, inducement representation the loan was extended to him. The agreement bearing no. 151705000249 for loan for the said purpose was duly executed by him. 4. That at the time of the grant if the said amount the accused duly completed all the formalities and executed all the documents including the execution of the above stated agreement. It was also made clear to him that the said amount is to be repaid by him as per the terms of the agreement. 5. That the accused issued the following Cheques in order to pay a part of the amount outstanding against accused. It is thus seen that there are no allegations qua the petitioner and/or any averment that he was/is responsible for the conduct of the business of the accused company and thus liable to be prosecuted in his individual capacity. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at is the nomenclature and how each one of accused nos.02 to 12 is in-charge. Admittedly, accused nos.02 to 12 are not the signatories to the disputed cheques. In fact, in para no.05 of the complaint, the complainant has stated that accused nos.01 to 12 issued a cheque ..... None of them i.e. accused nos.02 to 12 had issued that cheque but somebody else is the signatory to the cheque. This fact is also suppressed by the complainant. The learned Magistrate ought to have considered as to who is the signatory to the cheque and whether he is made an accused or not before proceeding to issue process against accused nos.02 to 12. In N.K. Wahi's case (supra), the Hon'ble Supreme Court has relied on the decision in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and another [2005(8) SCC 89], wherein it was held thus:- To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. Itis a departur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anaging director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under subsection (2) of Section 141. 13. Therefore, taking into consideration the above said legal position, it was necessary for the complainant to specifically aver and demonstrate as to how each one of accused nos.02 to 12 were in charge and responsible for the conduct of the business of accused no.01. Therefore, the order of issuance of process passed by the learned Magistrate cannot be allowed to be sustained. 10. I am in respectful agreement with the above view taken above by the learned Judge, which in turn, is based on lucid principles enunciated by Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy proceedings against the accused company and imposition of moratorium, two consequences arise, namely, (a) option to compound a cheque bounce is not available to its directors (erstwhile) and; (b) claims of the creditors have to be submitted before a committee of creditors. The primary liability in a cheque bounce case where cheque has been issued on behalf of the company is upon the drawer-Company. Though the accounts of the drawer company herein are under the control of a Resolution Professional but sword of liability qua cheque issued on behalf of company has been vicariously imposed on the suspended director/petitioner. 15. It is not out of place to mention here that NCLT, Chandigarh vide order dated 08.08.2018(Annexure P-5) held that financial creditors against the corporate debtor(Supreme Tex Mart Limited) initiated the insolvency resolution process against the Company Supreme Tex Mart Limited. The petition was admitted on 29.09.2017, declaring moratorium in terms of Section 14 of the Code and by another order dated 11.10.2017, Mr. Bhupesh Gupta, Registered Resolution Professional was appointed as Interim Resolution Professional with necessary directions. The Interim Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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