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2020 (5) TMI 266 - HC - Indian LawsDishonor of Cheque - cheque was returned unpaid - existence of legal debt - Section 138 of the NI Act - respondent opposed the application by contending that the cheque in question worth of ₹ 4,24,800/- has been issued by the applicants company for discharge of legal debt and the same was dishonoured, therefore, the applicants are liable to be prosecuted for commission of offence punishable under Section 138 of the NI Act - HELD THAT:- This Court, vide order dated 14/05/2018 permitted the Official Liquidator to took the actual physical possession of assets of the Company M/s Plethico Pharmaceuticals Ltd. in liquidation. After that, on 23/05/2018, the respondent /complainant gave a notice to the applicants for payment of the cheque amount and when the applicants fails to pay the cheque amount, then the respondent/complainant filed private complaint against the applicants under Section 138 of the Negotiable Instruments Act, 1881 on 05/07/2018, which was got registered vide order dated 27/07/2018. Where cheque presented is dishonoured and complaint is filed under Section 138 of the Negotiable Instruments Act against the company and its Directors after the company has already been ordered to be wound up. Whether such a complaint would be maintainable? - HELD THAT:- After the winding up orders and taking over the affairs of the company by the Official Liquidator since erstwhile the directors seized to be the directors as on the date of dishonour of the cheque because they were not in-charge of day to day affairs of the company. Offence is committed under Section 138 of the Act only on the dishonour of cheque amount and issuance of notice for demand of the cheque amount. As on that day, no such notice could be issued to the Company, which was in liquidation and the creditors is not to be paid as per the statute of the Companies Act, Therefore, the liability on them also cannot be fastened under Section 141 of the Negotiable Instruments Act, 1881. Interpretation of the expression “fails to make payment” - HELD THAT:- The drawer in the instant case would be a company, which has gone into liquidation and case of a company is on different footing and is governed by the statute, namely, the Companies Act. What is emphasized is that actual offence has to be committed by the company and then alone the Directors can become liable for the offence. When the company goes into liquidation and the cheque is presented thereafter, it cannot be said that the company has committed the offence as it is because of legal bar that it is precluded from making the payment. Once dishonour of the cheque by the Bank and failure to make payment of amount by the company is beyond its control, the Directors (who are in fact ex-Directors) can also not be held liable - such a complaint would not be maintainable, when the cheque is presented after the company has already been ordered to be wound up. The complaint filed under Section 138 of the Negotiable Instruments Act, 1881 is not maintainable because the complainant /respondent sent a notice to the applicants on 23/05/2018 i.e. after passing of the wind up order by this Court meaning thereby on the date of issuance of notice to the applicants the company was in liquidation and cannot be stated to have committed any offence, therefore, summoning order is bad in law - Petition allowed.
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