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2022 (4) TMI 61 - HC - Indian LawsDishonor of Cheque - vicarious liability - directors have resigned from the company - Impact of injunction order to initiate prosecution - cognizance of the offence under Section 138 of the Negotiable Instrument Act, 1881 - HELD THAT:- it is apparent that a clear averment is made in the complaint that at the time of commission of the offence they were in charge of and responsible to the company for the conduct of business to the company and as such they are vicariously liable for a criminal offence under Section 141 of the N.I. Act. It is to be mentioned here that in paragraph No. 21 of the complaint petition it has been categorically stated that the petitioner along with accused No. 2 in collusion and in connivance with each other, hatched up a criminal conspiracy against the respondent for making wrongful personal gain and acting upon such conspiracy they used to take advance payment from the complaint in lieu of supply of sugar and by restoring to cheating and foul play, created the huge liability payable to the complainant during the last 4 years and misappropriated the amount of the complainant for their wrongful and personal gain and after repeated request and demand they have arrived at a settlement and agreed to return ₹ 10 crore to the complainant and issued two cheques amounting to ₹ 5 crore each in favour of the complainant against discharge of their liabilities. But, they played foul play with the complainant and both the cheques were dishonoured and they issued the cheques knowing fully well that said cheque will be dishonoured and being the Director of the accused No. 1 Company they have committed the offence of criminal breach of trust and cheating and are liable to be punished accordingly. Section 41 of the Specific Relief Act 1963 lays down in what cases injunction cannot be granted. Under Clause (a) an injunction cannot be granted to restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings. According to Clause (b), an injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a Court not subordinate to that from which the injunction is sought. According to Clause (d) injunction cannot be granted to restrain any person from instituting or prosecuting any proceeding in a criminal matter. Thus, it cannot be said that the Civil Suit instituted by the petitioners has stands in the way of filing the complaint by the respondent before the court of leaned CJM, Tinsukia, the process of which was started much prior to passing the impugned order on 03.01.2019, whereas the cheques were presented in the bank by the respondents on 21.11.2018 - there are no merit in the petition. Petition dismissed.
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