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2006 (11) TMI 346 - HC - Companies LawMaintainability of Compliant - Dishonour of cheque - appointment of Official Liquidator/Liquidator - whether a complaint u/s 138 of the Negotiable Instruments Act can be filed against the company and/or its Managing Director/Director after the winding up of the said company? - HELD THAT:- In the instant case itself, account was closed by the Official Liquidator and that was the reason for dishonour of cheque. It is also to be borne in mind that after the winding up orders and the taking over of the affairs of the company by the Official Liquidator since erstwhile Directors cease to be the Directors as on the date of presentation of the cheque, they are not incharge of day-to-day affairs of the company. Offence is committed u/s 138 of the Act only on the dishonour of the cheque and issuance of notice for demand to pay the amount. As on that date, no such notice could be issued to the company which was in liquidation and the creditors are now to be paid as per the scheme of the Companies Act. Therefore, liability on them also cannot be fastened u/s 141 of the Negotiable Instruments Act. Here is a complaint u/s 138 of the Negotiable Instruments Act filed before an ordinary Criminal Court/Magistrate. Therefore, the governing section would be section 138 of the Negotiable Instruments Act which deals with "offence" and not "transaction". It is held in number of cases that the cause of action for filing of the complaint arise only after the notice of dishonour of the cheque is given and payment is not made within 15 days of the receipt of the said notice. Therefore, date on which cheques were handed over would have no bearing and it is only when the cheque is presented for payment and is dishonoured and even after notice of dishonour is given and payment is not made by the drawer of the cheque within 15 days of the receipt of this notice, cause of action for filing of complaint would arise. In the instant case when the cheque was presented and the notice of dishonour was given the company had already been wound up. Hence, complaint u/s 138 of the Negotiable Instruments Act cannot be filed as on the date of presentation of the cheque the company was in liquidation and cannot be stated to have committed any offence. Even second and third accused (petitioners herein) were not the Incharge of the day-to-day affairs and conduct of the business of the company on that date. No doubt there are allegations of cheating as well and the complaint is u/s 420 r/w section 120B of the IPC as well. It would have reference to the date when the cheques were issued with intent to cheat and complaint to that extent may be maintainable if prima facie case under these provisions is made out. However, the summoning orders dated 29-7-2000 would show that the cognizance of the alleged offence is taken only after section 138 of the Negotiable Instruments Act and not u/s 420 r/w section 120B of the IPC. Since complaint u/s 138 of the Negotiable Instruments Act is not maintainable if filed after the winding up of the company, summoning order issued is bad in law. The petition is accordingly allowed and the summoning order is set aside. The complaint would, thus, warrant dismissal and it is ordered to be dismissed.
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