Cheque dishonour complaint fails after winding up; directors cannot be prosecuted where the company is already in liquidation.

A complaint under Section 138 of the Negotiable Instruments Act was held not maintainable where the cheque was presented and the complaint was filed after the company had already been ordered to be wound up. Once winding up was ordered, the company's affairs vested in the Official Liquidator and the former Directors ceased to manage its business; the statutory debt-payment mechanism then operated under the Companies Act, 1956. The presumptions under Section 139 and vicarious liability under Section 141 did not assist the complainant because the company could not be treated as having committed the offence after liquidation. Directors also could not be proceeded against on that complaint.

---

---

Issues: Whether a complaint under Section 138 of the Negotiable Instruments Act, 1881 is maintainable when the cheque is presented and the complaint is filed after the company has already been ordered to be wound up, and whether the Directors can still be prosecuted in such circumstances.

Analysis: Once a company is ordered to be wound up, its affairs vest in the Official Liquidator and the erstwhile Directors cease to manage its day-to-day affairs. In that situation, presentation of a cheque and issuance of notice under Section 138 occur after the company is under a legal bar from dealing with its assets, and the statutory machinery for payment of debts operates only under the Companies Act, 1956. The legal position relied upon for cases where winding up is only pending does not apply where the winding up order already exists. The presumption under Section 139 and the vicarious liability under Section 141 do not assist the complainant when the principal offender, namely the company, cannot be said to have committed the offence after winding up. The Court distinguished authorities dealing with complaints filed before winding up or with different statutory settings and held that those principles cannot sustain a complaint instituted after the company has already gone into liquidation.

Conclusion: A complaint under Section 138 of the Negotiable Instruments Act, 1881 filed after the company had already been wound up was not maintainable, and the Directors also could not be proceeded against on that complaint.

---