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TMI Blog2024 (6) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings to see if the case mentioned against the Petitioner are present therein; ii. This Hon'ble Court be pleased to quash the condition to deposit Rs. 13,73,890/- imposed in impugned order dated 16/04/2024 against the Petitioner in the application under Section 389 CrPC seeking suspension of the execution of sentence (including the order to pay compensation) during the pendency of appeal on account of effect of interim moratorium as per Section 96 of Insolvency and Bankruptcy Code, 2016 as imposed by Hon'ble National Company Law Tribunal, Indore Bench, for initiating/undergoing the insolvency resolution process, vide Company Petition(IB)/74(MP)2022, with effect from 14/10/2022; iii. Such other and further orders that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uttress his contentions, counsel for petitioner has relied upon the judgment passed by Supreme Court in the case of P. Mohanraj and others v. Shah Brothers Ispat Private Limited, reported in (2021) 6 SCC 258 and also the judgment passed by Punjab and Haryana High Court in the case of Vijay Kumar Ghai vs. Pritpal Singh Babbar reported in 2022 SCC OnLine P&H 1672. 6. Considered the submissions made by counsel for applicant. 7. In order to challenge the condition of deposit of an amount of Rs. 13,73,890/- for suspension of sentence, the only contention of counsel for applicant is that since borrower has initiated the proceedings for insolvency under the Code, 2016, therefore, in the light of Section 96 of Code, 2016, the debt cannot be reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings. We cannot lose sight of the fact that Section 138 of the NI Act are not recovery proceedings. They are penal in character. A person may face imprisonment or fine or both under Section 138 of the NI Act. It is not a recovery of the amount with interest as a debt recovery proceedings would be. They are not akin to suit proceedings. 18. It cannot be said that the process under IBC whether under Section 31 or Sections 38 to 41 which can extinguish the debt would ipso facto apply to the extinguishment of the criminal proceedings. No doubt in terms of the scheme under IBC there are sacrifices to be made by parties to settle the debts, the company being liquidated or revitalised. The appellant before us has been roped in as a signato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate debtor escape prosecution. How can one allow the natural persons to escape liability on such specious plea? In such a situation the Latin maxim lex non cogit ad impossibilia is attracted which means law does not compel a man to do which he cannot possibly perform. Broom's Legal Maxims contains several illustrative cases in support of the maxim. This maxim has been referred to with approval by this Court in State of Rajasthan v. Shamsher Singh [State of Rajasthan v. Shamsher Singh, 1985 Supp SCC 416 : 1985 SCC (Cri) 421]. 75. Thus, where the proceedings under Section 138 of the NI Act had already commenced and during the pendency the plan is approved or the company gets dissolved, the Directors and the other accused cannot escap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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