TaxTMI 
TaxTMI 
TaxTMI 
2024 (6) TMI 1316
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.... of cheques filed under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the N.I. Act'). 3. Brief facts of the case are as under : A respondent No. 2 alleged in the complaint under Section 138 of the N.I. Act that the applicants i.e. accused Nos. 2 to 9 are Executive of Amtek Auto Ltd. and they are liable for all the acts of it. The respondent No. 2 further averred that as per the demand of the Amtek Auto Ltd. rerolling material on credit was supplied to it from time to time. The applicants have not paid its due amount of Rs. 3,79,47,504/- to the respondent No. 2. The details of the cheques are as under : Sr.No. Cheque Nos. Date Amount Drawn 1 000665 09.08.2017 32,14,417 Andhra Bank 2 000666 10.08.2017 22,81,559 Andhra Bank 3 084635 10.08.2017 15,23,431 Andhra Bank 4 000667 12.08.2017 35,16,608 Andhra Bank 5 084632 13.08.2017 21,18,411 Andhra Bank 6 084636 16.08.2017 19,20,876 Andhra Bank 7 084637 22.08.2017 27,15,757 Andhra Bank 8 000851 10.09.2017 21,27,482 Andhra Bank 9 000852 16.09.2017 37,38,747 Andhra Bank 10 000853 21.09.2017 32,69,867 Andhra Bank 11 000854 23.09.2017 32,73,076 Andhra Bank 12 000....
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.... and not pleaded in the complaint. The respondent No. 2 has not issued notice to the signatory of cheque and he is not made party to the complaint. The statutory notice was not served to any of the applicants. The notice is also not issued to the Insovency Resolution Professional by the respondent No. 2. The cheques in question were received on 4.12.2017 by the respondent No. 2 which clearly shows that those were issued during the pendency of Insolvency Resolution Professional proceeding. By the said proceeding the Amtek Company was precluded from making payments and it is beyond its control and therefore the applicants Director (Ex-Director) etc. cannot be held liable for it. The order of issue process is illegally passed against the applicants. The general allegations are made against the applicants about their liability without pointing out their actual role and knowledge of issuing the cheque for the alleged liability to pay the amount of dishonoured cheques. The complaint is filed only with malafide intention. The applicants are not involved with day to day affairs of the Amtek Company. No any legal liability is in existence to pay that amount of the dishonoured cheques. Mere....
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....] runs counter to the ratio laid down in 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 [(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." xxx xxx xxx "56. We have referred to the aforesaid passages only to highlight that there has to be strict observance of the provisions regard being had to the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the rights of persons, whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly speaks of commission of offence by the company. The learned counsel for the respondents have v....
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....initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the 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 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. CONCLUSION 79. Resultantly, the civil appeal is allowed and the judgment under appeal is set aside. However, the Section 138/141 proceedings in this case will continue both against the company as well as the appellants for the reason....