2026 (1) TMI 948

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....CC No.3106/2022 titled as Kotak Mahindra Bank Ltd. v. Future Retail Ltd. & Ors. which is stated to be pending before the Court of Judicial Magistrate First Class (JMFC), (N.I. Act), West District, Digital Court-01, Tis Hazari Court, New Delhi. 4. The case set out in the present petition is that the petitioners herein were the directors of respondent no.2/company namely, M/S Future Retail Ltd. (hereinafter 'the company'). The said company had availed credit facility from respondent no.1/bank, against which undated cheques were issued to respondent no.1/bank. 5. The aforesaid complaint case under Section 138 of N.I. Act filed by respondent no.1/bank pertains to two such cheques issued to it by the company, the details of which are as under: (i) Cheque No.081660 for an amount of Rs.3,48,39,892.00. (ii) Cheque No.081659 for an amount of Rs.50,00,00,000.00. 6. The aforesaid two cheques were presented for encashment by respondent no.1/bank, but the same were returned unpaid with the cheque return memo dated 29.04.2022 with the remarks "kindly contact drawer/drawee bank and present again". 7. Respondent no.1/bank, once again presented the said two cheques on ....

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....id provision. 14. In support of his contention, Mr. Khurana has placed reliance on the decision of the Hon'ble Supreme Court in Vishnoo Mittal v. Shakti Trading Company, (2025) 9 SCC 417. 15. Per contra, Ms. Vaishnavi Viswanathan, learned counsel appearing on behalf of respondent no.1/bank submits that the petitioners were in charge of, and responsible for, the conduct of business of respondent no.2/company at the time cheques in question were issued and were presented. Therefore, their subsequent suspension upon initiation of CIRP does not extinguish the liability for the acts of their omission or commission at a prior point in the statutory chain of events under Section 138 of N.I. Act. 16. She has placed reliance on the decision of the Hon'ble Supreme Court in S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan, 2022 SCC OnLine SC 1382. 17. Having heard the learned counsel for the parties, a short question which arises for consideration of this Court is whether the complaint under Section 138 of N.I. Act could have been filed and continued against the petitioners with regard to dishonour of cheques issued by respondent no.2/company, when CIRP proceedings had been i....

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....f Section 17 IBC. 14. Additionally, we have been informed on behalf of the appellant that, after the imposition of the moratorium, the IRP had made a public announcement inviting the claims from the creditors of the corporate debtor and the respondent has filed a claim with the IRP. 15. Keeping in mind the above observations and distinguishing facts and circumstances of this case from that of P. Mohanraj [P. Mohanraj v. Shah Bros. Ispat (P) Ltd., (2021) 6 SCC 258 : (2021) 3 SCC (Civ) 427 : (2021) 2 SCC (Cri) 818 : (2021) 14 Comp Cas-OL 1], we are of the considered view that the High Court ought to have quashed the case against the appellant by exercising its power under Section 482CrPC. 16. Therefore, we allow this appeal by setting aside the impugned order dated 21-12-2021 [Vishnoo Mittal v. Shakti Trading Co., (2022) 17 Comp Cas-OL 342 : 2021 SCC OnLine P&H 4434] and quash the summoning order dated 7-9-2018. Further, we hereby quash Complaint Case No. 15580/2018, pending before the Chief Judicial Magistrate Court, Chandigarh, filed by the respondent against the appellant." (emphasis supplied) 19. In Govind Prasad Todi v. Govt. of NCT of Delhi, 202....

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....3.07.2022 and 26.07.2022. Even on the basis of the earliest date of service of demand notice i.e. 23.07.2022, the 15 days period for making payment in terms of demand notice had expired on 07.08.2022. 22. Thus, the offence under Section 138 of N.I. Act was complete on 07.08.2022 and it is thereafter, that the cause of action arose for filing the complaint under the said provision. However, in the meanwhile, the NCLT, Mumbai admitted the petition under Section 7 of IBC; initiated CIRP against respondent no.2/company; appointed the IRP, and imposed a moratorium under Section 14 of IBC, vide order dated 20.07.2022. 23. Clearly, even prior to the dispatch of the demand notice by respondent no.1/bank on 21.07.2022, the IRP had been appointed and moratorium was also imposed on 20.07.2022, therefore, during the notice period of 15 days which commenced with the service of demand notice on 23.07.2022, the petitioners were not having any control over the bank accounts of respondent no.2/company, as the power to operate the said accounts had vested with the IRP in accordance with the provisions of Section 17 of IBC. In other words, the petitioners in their capacity as erstwhile director....