AI Drafter 
TaxTMI 
TaxTMI 
2020 (11) TMI 835
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....by respondent bank against petitioner/accused no.2, a former director of accused no.1-company. Complaint resulted out of dishonour of two collateral security cheques dated 15.08.2017 and 26.07.2017, for an amount of Rs. 10,78,419/- and Rs. 5,00,000/-, respectively. Cheques were issued on behalf of accused company M/s Supreme Tex Mart Limited, in discharge of alleged outstanding of a term loan sanctioned by the bank. 3. The banker of the petitioner returned the cheques vide memo dated 24.08.2017on account of "payment stopped by the drawer" instructions. Despite legal notice dated 01.09.2017, no payment was made, leading to the filing of impugned complaint. The trial Court, on the basis of preliminary evidence, summoned the accused c....
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....he business of the accused company and thus liable to be prosecuted in his individual capacity. 6. In the aforementioned context, learned counsel for the petitioner relies on a decision in case titled Rajeev Raj Kumar &Ors. Vs. State of Maharashtra &Anr, Criminal Application No. 02052 of 2018 wherein,per him, in somewhat similar situation, prosecution of 138 complaint against the Directors of accused Company was quashed. Continuation thereof was held valid only against the accused Company. He submits that prior to filing of impugned complaint, Allahabad Bank had already initiated insolvency proceedings against the Company. Moratorium had been declared. Company did not thereafter have the option to pay its debts and/or settle/pay the amou....
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....nos.02 to 12, only at two places, same statement has been made by the complainant, that they are the directors of accused no.01, who are in-charge and responsible for the conduct of the affairs of the company. The complainant has not given what is the nomenclature and how each one of accused nos.02 to 12 is in-charge. Admittedly, accused nos.02 to 12 are not the signatories to the disputed cheques. In fact, in para no.05 of the complaint, the complainant has stated that accused nos.01 to 12 issued a cheque ..... None of them i.e. accused nos.02 to 12 had issued that cheque but somebody else is the signatory to the cheque. This fact is also suppressed by the complainant. The learned Magistrate ought to have considered as to who is the signat....
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....averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial. " Further, taking into consideration the legal fiction that has been created in Section 141 of the N.I. Act, in para 19 of the judgment, it has been held thus:" 19. In view of the above discussion, our answers to the questions posed in the reference are as under : (a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is anessential require....
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.... be covered under subsection (2) of Section 141." 13. Therefore, taking into consideration the above said legal position, it was necessary for the complainant to specifically aver and demonstrate as to how each one of accused nos.02 to 12 were in charge and responsible for the conduct of the business of accused no.01. Therefore, the order of issuance of process passed by the learned Magistrate cannot be allowed to be sustained." 10. I am in respectful agreement with the above view taken above by the learned Judge, which in turn, is based on lucid principles enunciated by Supreme Court in S.M.S. Pharmaceuticals Ltd., ibid. Going by contents and the allegations contained in the impugned complaint, continuation of prosecution again....
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....", the resolution process gets initiated. The existing management automatically gets suspended. The Interim Resolution Professional takes over the operations of the company. Under Section 25 of IBC the Resolution Professional is under mandate to protect and preserve the assets of the 'corporate debtor company'. Subsequent thereto, the committee of creditor is required to submit a resolution plan for approval of the 'committee of creditors'. After such approval, the resolution plan is presented to the Adjudicating Authority. Resolution plan, if approved, is be binding on the corporate debtor and its employees, members, creditors, guarantors and other stakeholders involved in the resolution plan. 14. In the premise, due to insolvency proce....