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2023 (10) TMI 4 - GUJARAT HIGH COURTDishonour of Cheque - legally enforceable debt or legal dues - vicarious liability - signatory/director can take the benefit of discharge obtained by the corporate debtor or not - HELD THAT:- Considering the newly added provision of Section 32A of IBC, the corporate debtor can be exonerated from the liability if the company is dissolved, however, the natural person i.e. the partners or directors of the same cannot escape penal liability under the provisions of the NI Act. As per the provisions of Section 138 of the NI Act, if the cheque was dishonoured, statutory notice was issued, the amount is not paid within 15 days thereafter, the cause of action arises and if the complaint is filed within one month from the date of cause of action, the only question before the criminal court is whether the cheque was issued, it was bounced, and despite the service of notice, the amount is not paid. There is no bar contained in any of the provisions of the IBC restraining the complainant to approach the criminal court to seek penal action under Section 138 of the NI Act. The signatory/director cannot take the benefit of discharge obtained by the corporate debtor by operation of law under the IBC. Further, the facts of the cheques being issued, signature on the cheques, the cheques being issued in what capacity, the cheques being issued for legally enforceable debt or not, that the petitioners are/were directors of the company, what role the petitioners had in the day to day affairs of the company etc. are all facts which are required to be tested at the time of trial and the petitioner has failed to produce some impeachable and incontrovertible evidence beyond suspicion of doubt and all the contentions raised in these petitions are in the form of defence, which can be tested at the time of trial and not at the stage of quashing of the complaints. It is an undisputed fact that from bare reading of the complaint, the necessary averments are made regarding the liability of the accused persons (vicarious liability) under Section 138 read with Section 141 of the NI Act. It also transpires that Clause 9 of the MOU clearly refers to twelve cheques totalling to Rs.2,35,42,524/- of the personal bank account to be held as additional security. The petitioners have not disputed existence of MOU and cheques were issued in terms of the MOU. It is also now settled that directors are vicariously liable for the acts committed on behalf of the company. In view of Sections 138, 139 and 141 of the NI Act, it is also clear position of law that under provisions of Section 14 of IBC, the proceedings cannot continue against corporate debtor but can be initiated or continued against natural persons including persons mentioned under Sections 141(1) and 141(2) of the NI Act. It also transpires that MOU is executed between the parties, the contents of which are being interpreted differently by learned advocate for the parties, whether the cheques were issued as security or towards legally enforceable debt, are all matter of trial and this Court cannot conduct mini trial or roving inquiry at the stage of exercising the powers under Section 482 of of the Code, therefore, it is opined that this is not a fit case to exercise powers under Article 226/227 of the Constitution of India read with Section 482 of the Code, as all the points raised herein need a full fledged trial. Petition dismissed.
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