TaxTMI 
TaxTMI 
2021 (11) TMI 649
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....inable with accused persons having been discharged in view of the factum that the cheques in question in each of the said complaint cases were presented for encashment after the winding up of the company named M/s Catmoss Retail Pvt. Ltd. of which the Managing Director and Directors thereof were arrayed as other accused, in as much as, the said company was wound up on 27.03.2014 and the cheques in question in the said complaint cases bearing cheque no.563591 dated 29/09/2014, 563592 dated 29/12/2014 subject matter of CC N0.47612/16, cheque in question bearing no. 563589 dated 29/12/2014 subject matter of CC No.46759/16, cheque in question bearing no. 563587 dated 29/09/14 and 563588 dated 29/12/2014 subject matter of CC no. 51977/16 and cheque in question bearing no. 563585 dated 29/12/2014 subject matter of CC No. 46966/16 were dishonoured on 08/12/14, 30/12/2014, 30/12/2014, 08/12/2014, 30.12.2014 and 30/12/2014 respectively. Vide the impugned order, the learned Trial Court has placed reliance on observations of this Court in "M.L Gupta and Anr. Vs. CEAT Financial Services Ltd." 136 (2007) DLT 308 with specific observations therein to the effect:- ""16. Thus, what is ....
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....ry 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 22A 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 circumstances of the case. Take for instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BIFR under Section 22A was passed against the company then it cannot be said that the offence under Section 138, NI Act was completed. In such a case it may reasonably be said that the dishonouring of the cheque by the bank and failure to make payment of the amount by the company and/or its Directors is for reasons beyond the c....
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....siness of the Company, as well as the Company. The Court, therefore, in Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] held as under : (SCC pp. 686-88, paras 51, 56 & 58-59) "51. We have already opined that the decision in Sheoratan Agarwal [Sheoratan Agarwal v. State of M.P., (1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter to the ratio laid down in C.V. Parekh [State of Madras v. C.V. Parekh, (1970) 3 SCC 491 : 1971 SCC (Cri) 97] which is by a larger Bench and hence, is a binding precedent. On the aforesaid ratiocination, the decision in Anil Hada [Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as not laying down the correct law as far as it states that the Director or any other officer can be prosecuted without impleadment of the Company. Needless to emphasise, the matter would stand on a different footing where there is some legal impediment and the doctrine of lex non cogit ad impossibilia gets attracted. *** 56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the prov....
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....s not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada [Anil Hada v. Indian Acrylic Ltd., (2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the qualifier as stated in para 51. The decision in Modi Distillery [U.P. Pollution Control Board v. Modi Distillery, (1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be restricted to its own facts as has been explained by us hereinabove." 102. Since the corporate debtor would be covered by the moratorium provision contained in Section 14 IBC, by which continuation of Sections 138/141 proceedings against the corporate debtor and initiation of Sections 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paras 51 and 59 in Aneeta Hada [Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 : (2012) 3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] would then become applicable. The legal impediment contained in Section 14 IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Sections 138/141 proceeding....