Petition to Quash Summoning Order Dismissed under Section 138

The court dismissed the petition seeking to quash the summoning order under Section 138 of the Negotiable Instruments Act, considering the permission granted to continue with the complaint proceedings and the absence of a final winding-up order at the time of filing the complaint. The court emphasized that the complaint was validly instituted before the final winding-up order and that the pending winding-up petition did not render the complaint under Section 138 invalid.

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Issues Involved:
1. Quashing of the summoning order dated 15.10.2014.
2. Impact of the company's liquidation on the maintainability of the complaint under Section 138 of the Negotiable Instruments Act, 1881.
3. Validity of the complaint filed after the appointment of the Provisional Liquidator.
4. Permission granted by the court to continue with the complaint proceedings.

Issue-wise Detailed Analysis:

1. Quashing of the Summoning Order Dated 15.10.2014:
The petitioner sought the quashing of the summoning order dated 15.10.2014 issued by the Court of the learned ACMM East KKD in Complaint Case No. 9168/2019. The petitioner argued that the accused company, M/s Catmoss Retail Private Limited, had gone into liquidation as per the order dated 28.02.2013, and the dishonored cheque in question was dated after this order. The petitioner relied on the verdict in M.L. Gupta & Anr. vs. Ceat Financial Services Ltd., which held that a complaint under Section 138 of the Negotiable Instruments Act is not maintainable if filed after the company has gone into liquidation.

2. Impact of the Company's Liquidation on the Maintainability of the Complaint:
The petitioner argued that since the company was in liquidation, it could not have committed any offense under Section 138 of the Negotiable Instruments Act. The petitioner also cited the Karnataka High Court's decision in M/s Religare Finvest Limited vs. Vijay Steel Tubes and Fitting Private Limited, which held that a complaint under Section 138 is not maintainable if filed after the company has gone into liquidation. However, the court noted that the winding-up petition (Co.Pet. 36/2013) was still pending, and only a Provisional Liquidator had been appointed, not a final winding-up order.

3. Validity of the Complaint Filed After the Appointment of the Provisional Liquidator:
The court observed that the complaint under Section 138 of the Negotiable Instruments Act was filed on 12.08.2013, after the appointment of the Provisional Liquidator on 28.02.2013. However, the court highlighted that the order dated 28.02.2013 was kept in abeyance on 12.03.2013 and was later recalled on 06.05.2013. The final winding-up order was issued on 27.03.2014, which was after the filing of the complaint. Therefore, the complaint was validly instituted before the final winding-up order.

4. Permission Granted by the Court to Continue with the Complaint Proceedings:
The respondent opposed the petitioner's submissions, citing the order dated 10.07.2017, which permitted the continuation of the complaint proceedings under Section 138 of the Negotiable Instruments Act against the respondent and its directors. The court noted that the respondent had been granted permission to proceed with the complaint CC No. 2913/1/15, which was related to the dishonored cheque in question. The court also referred to the observations in para 7(B) of the verdict in M.L. Gupta & Anr., which stated that if a winding-up petition is pending and no winding-up order is passed, a complaint under Section 138 is maintainable.

Conclusion:
The court dismissed the petition, taking into account the permission granted to continue with the complaint proceedings and the observations in the M.L. Gupta & Anr. case. The court clarified that nothing stated in the judgment would affect the merits or demerits of the adjudication in the ongoing complaint case.

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