TaxTMI 
TaxTMI 
2022 (11) TMI 430
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Judge, George Town, Chennai had marked exhibits P1 to P7 and took cognizance over the private complaint filed by the respondent by way of assigning Calendar Case No.899 of 2018 and has issued process to the petitioner and other accused persons under Section 204 of Cr.P.C. (iii) In the private complaint filed by the respondent herein, it is alleged that (a) the 1st accused is a company wherein the 2nd accused is the authorised signatory of the 1st accused company and 3rd accused/petitioner herein is the Managing Director of the 1st accused company. (b) The respondent/complainant being a partnership firm, in requirement of TMT bars, approached the 1st accused company for supply of 60 metres of TMT bars within a period of 3 months. For the purchase of 60 meters of TMT bars, the respondent/complainant had remitted a sum of Rs.25,00,000/- as an advance payment to the bank of 1st accused. The 1st accused company even after the receipt of the advance payment of Rs.25,00,000/- had failed to supply the 60 Meters of TMT bars within the period of 3 months to the respondent/complainant. Hence, the respondent/complainant had insisted the 1st accused company to refund the advance amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sed company including financial and operational payments of the 1st accused company as well as the entire day-to-day management of the 1st accused company has been carried out by Mr.Venkataramanarao Nagarajan (IRP) and the petitioner herein/A3 is not in-charge of the 1st accused company operations and also he is no way connected with the 1st accused company. Hence the case in C.C.No.899/2018 as against the petitioner herein/A3 is liable to be quashed by this Hon'ble Court. 8. The alleged cheque is dated 29.12.2017. Interim Resolution Professional was appointed by the National Company Law Tribunal, Chennai on 04.09.2017. After exchange of notice, the private complaint under section 138 read with 141 of Negotiable Instruments Act, was filed on 28.02.2018 and cognizance is taken on 10.04.2018. 9. The main contention of the petitioner is that on the date of issuance of the disputed cheque dated 29.12.2017, the petitioner is not the Managing Director of the 1st accused company and he has not signed the disputed cheque and also claimed that during moratorium period as contemplated under Section 14 of the Insolvency and Bankruptcy Code, 2016 (in short 'I&B Code'), criminal p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Resolution Plan even if accepted by the adjudicating authority/appellate Tribunal can take away the power and jurisdiction of the criminal court to conduct and dispose of the proceedings before it in accordance with the provisions of the Code of Criminal Procedure. (v) (a) The Hon'ble Supreme Court in Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, even while overruling the decision in Anil Hada v. Indian Acrylic Ltd (2000) 1 SCC 1, as not laying down the correct law in so far as it states that the Director or any other officer can be prosecuted without impleadment of the company, proceeded to hold that the matter would stand on a different footing where there is some legal impediment as the doctrine of lex non cogit ad impossibilia gets attracted. It was specifically observed that the decision in Anil Hada [cited supra] is overruled with the qualifier as stated in para 51 therein. (b) Where the proceedings under Section 138 of the Act had already commenced and during the pendency, the company gets dissolved, the Directors and the other accused cannot escape by citing its dissolution. What is dissolved is only the company, not the personal penal liabili....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ode did not apply to Section 138 proceedings and further, issued direction that complaint is directed to continue against the Managing Director and Director, respectively and observing that Section 14 of I&B code could not cover proceedings already initiated under Section 138 of NI Act, held that such a proceedings can continue against erstwhile Directors/persons in charge of and responsible for the conduct of the business of the corporate debtor. 13. Therefore, in view of the above, I find that the main plank of the petitioner herein/A3 as to the maintainability of the criminal complaint against him, who is the Managing Director, after the moratorium period, stands negatived. 14. The next contention raised is that petitioner herein was arrayed as the 3rd accused in the above CC No.899 of 2018. The Interim Resolution Professional [IRP] was appointed on 04.09.2017 and he has taken charge. After appointment of IRP, the disputed cheque dated 29.12.2017 was issued by the 2nd accused, whereas the petitioner herein was also sued by the respondent in his private complaint as a capacity of the Managing Director. On the date of issuance of the alleged cheque, the petitioner herein was not....