TaxTMI 
TaxTMI 
2020 (5) TMI 266
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....e applicants and even after the service of notice, neither the applicants has filed the reply of the said notice nor they have paid the cheque amount. Therefore, the respondent/complaint made a complaint against the applicants before the Court of Additional Chief Judicial Magistrate, Indore. The learned Magistrate took the cognizance against the applicants for the commission of offence punishable under Sections 138 of the NI Act, vide order dated 27/07/2018, which was got registered as Criminal Complaint No. 3732/2018 Feeling aggrieved with the aforesaid order of taking cognizance, the applicants have preferred the present petition before this Court. 3. Learned counsel for the applicants submitted that the company has gone in liquidation and before the date of issuance of notice under Section 138 of the NI Act, the Official Liquidator was appointed by the High Court, vide order dated 14/05/2018 and he had taken physical possession of the Company M/s Plethico Pharmaceuticals Ltd., thus, there was no chance that the applicants would have received the notice dated 23/05/2018. It is also submitted that the cheque issued by the company was returned by the bank as the bank account of th....
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.... the NI Act. Hence, he prayed for rejection of the petition. 6. Having heard learned counsel for the parties and perused the record. 7. It is not disputed fact that the cheque No. 000413 dt. 16/02/2018 amounting to Rs. 4,24,800/-of Rajkot Nagrik Sahkari Bank Ltd. was issued by the company M/s. Plethico Pharmaceuticals Ltd in favour of the respondent. The said cheque was presented for encashment on 16/02/2018 and the same was dishonoured on 18/02/2018 with the note "Income Tax Noticee". It is alleged that the respondent / complainant orally informed the Company regarding dishonour of the said cheque, then they asked the complainant for representation of the cheque in the second week of May 2018 so that it can be realized. Thereafter, on 11/05/2018, the complainant again presented the aforesaid cheque in his bank account for realization and the same got dishonoured with the remark other reasons or "Income Tax Noticee". Then, the respondent/complainant issued a statutory notice to the applicants on 23/05/2018 and even after service of the notice, the applicants have not paid the cheque amount. However, the creditors of the Company viz. City Bank filed a writ petition No. 35/2013 be....
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.... liability of the company inforced under Section 138 read with Section 142 of the Negotiable Instruments Act. The company and its directors cannot shirk their criminal liability on the ground that the company was already wound up and the Official Liquidator had taken charge of the affairs of the company. However, in the aforesaid judgment, it is not clear that when the cheque was presented by the complainant for encashment and when it was got dishonoured, therefore, it cannot be said that this judgment is applicable in the facts of the present case. 11. The Division Bench of the Kerala High Court in Jose Antony Kakkad v. Official Liquidator 2000 Company Cases (Vol.100) 811 affirming the decision of the single Judge in Jose Antony Kokkad v. Official Liquidator (1999) 98 Company Cases 275 has categorically held as follows:- "The expression "other legal proceedings" in Section 446 of the Companies Act, 1956, does not take in all proceedings and proceedings under a special Act have an overriding effect over the general provisions under the Companies Act. The object of winding up of a company by the Court is to facilitate the protection and realisation of its assets with a view to en....
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....t is worth to note that the question involved in the present case was in different fact situation, namely, filing of complaint under Section 138 of the N.I. Act during the pendency of winding up petition where no orders for winding up of the company had been passed, as on the date when the complaint was filed. However, in the present case, the complaint has been filed after the company has already been ordered to be wound up. Thus, it is clear that the question involved in the aforesaid case was totally different from the facts of the present case. 14. Insofar as interpretation of the expression "fails to make payment" is concerned, the drawer in the instant case would be a company, which has gone into liquidation and case of a company is on different footing and is governed by the statute, namely, the Companies Act. 15. The observation made in paras referred to above are with a view to answer the aforesaid question, clearly indicates that such a complaint would not be maintainable when the cheque is presented after the company has already been ordered to be wound up. 16. The Hon'ble apex Court in the case of Anil Hada v. Indian Acrylic Ltd. 2000 Crl.L.J. 373, in paragraph N....
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....f the Board, any of its assets-(a) during the period of preparation or consideration of the scheme under Section 18; and (b) during the period beginning with the recording of opinion by the Board for winding up of the company under Sub-section (1) of Section 20 and up to commencement of the proceedings relating to the winding up before the concerned High Court. This exercise of the power by the Board is conditioned by the prescription that the Board is of the opinion that such a direction is necessary in the interest of the sick industrial company or its creditors or shareholders or in the public interest. In a case in which the BIFR has submitted its report declaring a company as 'sick' and has also issued a direction under Section 22-A restraining the company or its directors not to dispose of any of its assets except with consent of the Board then the contention raised on behalf of the appellants that a criminal case for the alleged offence under Section 138 NI Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright. Whether the contention can be accepted or not will depend on the facts and ....