2025 (10) TMI 172 - HC - Indian Laws

Section 138 prosecution can continue against company and directors; insolvency moratorium doesn't bar personal liability under Section 141

Shri Ramdev Cotspin Partnership Firm, through its Partner, Pramod Lunkaran Chandak Versus Pacific Cotspin Ltd. (Now known as Silverton Spineers Ltd), Shri Ashok Mehra, Chairman-cum-Whole Time Director of Pacific Cotspin Ltd., Chandra Prakash Mehra, Managing Director of Pacific Cotspin Ltd.

Bombay HC allowed the petition, quashing the JMFC's orders that stayed proceedings, and directed criminal prosecution under Section 138 NI Act to continue ... Dishonour of cheque - continuation of section 138/141 of NI Act, when moratorium in effect - entitlement to seek stay to the prosecution in view of the imposition of moratorium under Section 96 of the IB Code - Judicial Magistrate First Class was justified in staying the proceedings or not - HELD THAT:- The Supreme Court in case of P. Mohanraj [2021 (3) TMI 94 - SUPREME COURT] has observed that 'for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instruments Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.' Again another judgment which is necessary to be referred herein is the case of Ajay Goenka [2023 (3) TMI 686 - SUPREME COURT], wherein the Supreme Court while dealing with the provisions of IB Code has held that 'where the proceedings under Section 138 of the NI Act had already commenced with the Magistrate taking cognizance upon the complaint and during the pendency, the company gets dissolved, the signatories/directors cannot escape from their penal liability under Section 138 of the NI Act by citing its dissolution. What is dissolved, is only the company, not the personal penal liability of the accused covered under Section 141 of the NI Act.' Ultimately, the individuals responsible for financial misconduct cannot evade liability by hiding himself behind corporate debtor or insolvency proceedings, and therefore criminal proceedings under NI Act are not affected by moratorium under Section 14 or 96 of the IB Code. Therefore, both these cases i.e. P. Mohanraj and Ajay Goenka, deals with the intersection of IB Code and NI Act. P. Mohanraj focuses on the moratorium’s effect and Ajay Goenka addresses the impact of a resolution plan on Director’s liability under Section 138 of the NI Act. Thus, it is clear that despite moratorium proceedings, proceedings under Sections 138 and 148 of the NI Act, can be instituted or continued against the erstwhile Directors or persons incharge or responsible for conducting the business of the corporate debtor. However, after passing of the resolution plan under Section 31 of the IB Code by the adjudicating Authority and considering Section 32 A of the IB Code, Criminal proceedings under Section 138 of the NI Act will stand terminated only in relation to corporate debtor, provided that the old management is taken over by the new management - So far as the present case is concerned, the respondent nos. 2 and 3 are natural persons and managing the day to day affairs of the respondent No. 1 Company. The respondent No. 2 is the signatory to the cheques. The complaint under Section 138 of the NI Act would also demonstrate that the respondent nos. 2 and 3 are Chairman and Managing Director of the Company respectively. In the instant case, it appears that the interim moratorium in terms of Section 96[1][a] of the IB Code commenced, however, there is nothing on record to show what happened thereafter. Considering the above facts and circumstances, coupled with the law laid down by the Supreme Court, the position is crystal clear that the respondents cannot be protected even if the order of interim moratorium is passed by the NCLT Kolkata, and therefore, considering the discussion, the common order passed by the learned Judicial Magistrate First Class, Court No. 2, Akot, District Akola below Exhs.43 and 54 in Summary Criminal Case No. 405/2017, would not sustain and is liable to be quashed and set aside, and therefore, the proceedings for the offence punishable under Section 138 of the NI Act, shall continue against the respondents, i.e. the Company as well as its Chairman and Managing Director. The order passed by the learned Judicial Magistrate First Class, Court No. 2, Akot, District Akola below Exhs.43 and 54 in Summary Criminal Case No.405/2017, is hereby quashed and set aside - petition allowed. ISSUES PRESENTED AND CONSIDERED 1. Whether imposition of an interim moratorium under Section 96(1)(a) of the Insolvency and Bankruptcy Code (IB Code) entitles the corporate debtor and its office-bearers to stay or terminate ongoing criminal prosecution under Section 138 of the Negotiable Instruments Act (NI Act). 2. Whether proceedings under Section 138/141 of the NI Act are barred by moratorium provisions of the IB Code when initiated before initiation/admission of insolvency proceedings. 3. Whether personal criminal liability of natural persons (directors/signatories/in-charge) continues notwithstanding moratorium under Section 96/Section 14/Section 101 or approval of a resolution plan under the IB Code, and to what extent Section 32A affects such liability. 4. Whether the trial court was justified in staying the Section 138 NI Act proceedings on account of interim moratorium under Section 96 of the IB Code. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Effect of interim moratorium under Section 96(1)(a) IBC on ongoing Section 138 NI Act prosecution Legal framework: Section 96(1)(a) (interim moratorium upon presentation of application) and related moratorium provisions (Sections 14/101) create statutory bars on legal action against the corporate debtor to provide a breathing space for resolution. Section 138 NI Act is a penal provision dealing with dishonour of cheques; Section 141 identifies persons in charge/ responsible. Precedent treatment: The Court relied on and followed Supreme Court rulings interpreting the interplay between moratorium provisions and NI Act prosecutions, emphasizing that moratorium protects the corporate debtor's assets and monetary claims but does not automatically abrogate penal proceedings against natural persons who are personally liable. Interpretation and reasoning: The Court reiterated that moratorium is designed to shield the corporate debtor's assets and bar pecuniary attacks, but this protective ambit cannot be extended to allow natural persons to escape penal liability. The object and penal nature of Section 138-designed to maintain integrity of commercial transactions-distinguishes it from mere recovery proceedings. Where prosecution under Section 138/141 has already commenced against the company and persons in charge, continuation against natural persons is not impeded by moratorium; however, moratorium's statutory bar may prevent continuation/commencement only insofar as it operates against the corporate debtor's 'legal person' during the resolution process. Ratio vs. Obiter: Ratio - Interim moratorium under Section 96 does not immunize natural persons (directors/signatories/in-charge) from prosecution under Section 138/141; moratorium principally affects continuation of proceedings only to the extent of the corporate debtor as a legal entity. Obiter - Observations on the policy purpose of the moratorium and its potential adverse consequence if construed to permit escape from penal liability. Conclusion: Interim moratorium under Section 96(1)(a) does not justify a stay of criminal prosecution under Section 138 against the persons in charge; the trial court erred in staying proceedings on that ground. Issue 2 - Whether Section 138/141 NI Act proceedings constitute recovery proceedings barred by IB Code moratorium Legal framework: Differentiation between penal proceedings (NI Act) and civil recovery proceedings; statutory language of IB Code moratorium provisions targeting institution or continuation of suits/ proceedings 'in respect of debt' of corporate debtor. Precedent treatment: The Court treated prior authorities as establishing that Section 138 NI Act proceedings are penal in nature and not mere recovery; therefore they do not fall squarely within the moratorium's protection intended for civil/monetary enforcement against the corporate debtor's assets. Interpretation and reasoning: Since Section 138 enacts penal consequences for dishonour of cheque, the complainant approaches criminal court for penal action for an offence already committed rather than for civil recovery. Consequently, the moratorium's bar on proceedings 'in respect of debt' cannot be read to extinguish or automatically stay penal prosecutions against natural persons arising from that offence. Ratio vs. Obiter: Ratio - Section 138 proceedings are penal and distinct from recovery; moratorium under IBC cannot be invoked to convert or quash such penal proceedings against natural persons. Obiter - Illustrations of how moratorium protects corporate assets but should not be allowed to subvert criminal accountability. Conclusion: Section 138/141 prosecutions are not civil recovery proceedings barred by the IB Code moratorium and therefore may continue against persons personally liable. Issue 3 - Continuation of personal criminal liability of directors/signatories despite insolvency proceedings and effect of resolution plan/Section 32A Legal framework: Section 141 NI Act imposes personal liability on persons in charge; Section 32A of IB Code and provisions dealing with approval of resolution plans address cessation of certain liabilities of corporate debtor post-approval; statutory scheme contemplates that resolution plan may alter corporate debtor's liabilities but protects natural persons only in defined circumstances. Precedent treatment: The Court followed authoritative pronouncements holding that approval of a resolution plan or dissolution of the company does not automatically extinguish the personal penal liability of directors or signatories; Section 32A protects corporate entity's liability in specific contingencies but does not extend to natural persons except in narrowly defined situations (e.g., change of management provided the new management is not complicit in offences). Interpretation and reasoning: The Court emphasized that criminal liability under Section 138 is personal to the signatory/director and survives corporate restructuring, resolution approval, or liquidation, unless the statutory exceptions apply (e.g., where the resolution plan substitutes liability in accordance with law and management/control changes legitimately). The protection accorded to corporate debtor by Section 32A operates only in relation to the corporate debtor and where the new management is not implicated in prior offences; it does not shield the erstwhile directors from criminal prosecution. Ratio vs. Obiter: Ratio - Approval of a resolution plan or corporate dissolution under the IB Code does not automatically discharge personal criminal liability of directors/signatories under Section 138/141; Section 32A's cessation of liability applies to the corporate debtor in defined circumstances and does not immunize natural persons. Obiter - Discussion on the policy balance between rehabilitation of the corporate debtor and accountability of individuals. Conclusion: Personal criminal liability of directors/signatories continues notwithstanding moratorium or resolution processes; prosecution against such persons may proceed and the trial court's stay on that account was unsustainable. Issue 4 - Whether the trial court's stay of Section 138 proceedings was justified Legal framework & reasoning: Applying the principles above, the Court examined whether an interim moratorium automatically warranted staying criminal proceedings against both the company and its office-bearers. Given that Section 138 prosecutions are penal, and natural persons who signed the cheques are separately punishable, moratorium cannot be used to stay continuation of such prosecutions unless statutory exceptions operate to cease liability as to the corporate debtor in the precise manner prescribed by the IB Code. Ratio vs. Obiter: Ratio - Trial court erred in staying the entire prosecution; continuation of Section 138 proceedings is permissible against both the company and the responsible natural persons where applicable, and the stay was therefore set aside. Obiter - Observations on absence of record regarding subsequent steps after imposition of interim moratorium (e.g., admission, resolution plan) which might raise different questions at later stages. Conclusion: The Magistrate's order staying the proceedings in view of interim moratorium under Section 96 IBC was quashed and set aside; Section 138 proceedings shall continue against the corporate debtor and its Chairman/Managing Director (persons in charge) subject to any future developments under the IB Code that may lawfully and specifically affect liability. Cross-references and operative crystallization - Cross-reference: Issues 1-3 are interlinked: moratorium protects corporate debtor's assets (Issue 1) and does not convert penal NI Act proceedings into barred recovery actions (Issue 2); consequently, personal liability of directors persists (Issue 3), informing the conclusion on the trial court's stay (Issue 4). - Operative ratio: Interim moratorium under the IB Code does not automatically bar or stay criminal prosecutions under Section 138/141 of the NI Act against natural persons in charge; such prosecutions may proceed notwithstanding the moratorium, and a magistrate-ordered stay on that ground is impermissible unless a statutory provision (including post-resolution events under the IB Code) expressly and lawfully extinguishes such liability.