TMI Blog2019 (4) TMI 1819X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate for the Petitioners: Mr. Ratnanko Banerjee, Snr. Adv., Mr. Kaushik Gupta, Ms. Pritha Basu, Ms. Aryaa Chatterjee And Ms. Shivangi Pathak Advocate for the Opposite Party: Mr. Sakya Sen, Mr. Deb Kumar Sen And Mr. Subhamay Dewanji Madhumati Mitra, This is application under Section 482 of the Code of Criminal Procedure filed by the petitioners praying for quashing of entire proceedings in connection with C.C.No.387 of 2017 pending before the Learned Judicial Magistrate, 4th Court, Serampore, Hooghly. Brief facts which are necessary to consider the prayer of the petitioners may be mentioned as under: Present opposite party being the complainant on 14.06.2017 filed a petition of complaint before the Learned Additional Chief Judicial Magistrate, Serampore, against the present petitioner for commission of alleged offence under Section 138 of the Negotiable Instruments Act. Learned Additional Chief Judicial Magistrate took cognizance of the alleged offence and transferred the same to the Learned Judicial, 4th Court, Serampore, for disposal. On 25.08.2017 Learned Magistrate issued process against the petitioners to face trial for commission of alleged offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/- within a period of 15 days from the date of receipt thereof. Accused gave reply dated 05.05.2017 to said demand notice admitting the issuance of cheque towards their liability though some pleas were taken therein. Accused did not make any payment in spite of receipt of the demand notice. Present petitioner no.1 M/s. MBL Infrastructures Ltd. is a company incorporated within the meaning of Companies Act and has been projected as accused no.l, in the proceeding pending before the Learned Magistrate whereas the petitioner no.2 has been described as Managing Director and Chairman of the accused no.1, Company. By filing the present application under Section 482 of the Code of Criminal Procedure, the petitioners have prayed for quashing of the criminal proceedings pending before the Learned Magistrate on the following grounds:- RBL Bank Limited started a proceeding from 30.03.2017 being company petition no.170 of 2017 before the Kolkata Bench of the National Company Law Tribunal against the present petitioner no.1, company. It has been specifically stated by the petitioners that petitioner no.2 was the Chairman and Managing Director of the petitioner no.1, company upto 30.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f summons against the petitioners for commission of alleged offence under Section 141/138 of the Negotiable Instruments Act was not legally tenable. During the course of hearing Learned Counsel appearing for the petitioners has forcefully submitted that learned NCLT, Kolkata vide an order under Section 7 of the Insolvency and Bankruptcy Code started corporate insolvency resolution process against the petitioner no.1 company vide its order dated 30.03.2017 and declared moratorium and also directed for issuance of public notice. It has been contended that when the impugned cheque was presented for encashment and when the cheque was dishonoured vide return memo dated 07.04.2017, the petitioner no.2 was no way connected with the management and affairs of the company and as such he cannot be held responsible for dishonour of the cheque. He has further submitted that petitioner no.2 was not responsible for the affairs of the company after declaration of moratorium of the company, i.e petitioner no.1. He has invited the attention of the Court to the various provisions of the Insolvency and Bankruptcy Code 2016 and submitted that the entire management of the company was under the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lution Professional who was appointed vide order dated 30.03.2017 in company petition no.170 of 2017. Issuance and dishonor of cheque are admitted fact. Annexure at page-47 is the said order of moratorium as referred by the Learned Counsel for the petitioners. The order of moratorium mentions about prohibition of certain activities, as contained in the said order. I am referring the consequences of the said order as reflected in the order itself. The relevant portion of the said order runs as under:- (1) Subject to provisions of sub-sections (2) and (3), on the insolvency commencement date, the Adjudicating Authority shall by order declare moratorium for prohibiting all of the following, namely:- a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority; b) transferring encumbering, alienating or disposing of by the corporate debtor any of its assets or any legal right or beneficial interest therein; c) any action to foreclose, recover or enforce any security interest created by the corporate debto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by the petitioners in favour of complainant. In terms of Section 139 of the Negotiable Instruments Act there shall be necessary presumption of existing liability in favour of holder of the cheque. Averments made in the petition of complaint prima facie clearly indicate the commission of alleged offence under Section 138/141 of the Negotiable Instruments Act. Reliance has been placed by the opposite party on the decision of Indorama Synthetics (I) Ltd. Nagpur Vs. State of Maharashtra and others. In that case, a question arose whether the expression suit or other proceedings mentioned in Section 446(1) of the Companies Act , would include criminal proceedings under Section 138 of the Negotiable Instruments Act. It has been held in that case that the said expression suit or other proceedings used in Section 446(1) of the Companies Act , does not mean each and every civil proceedings, which has no bearing on the winding up proceedings or criminal offences where the Director of the company is personally liable for penal action. Moreover, in paragraph 28 of the said judgment it has also been observed that if one considers the provisions of section 138 of the Negotiable Inst ..... 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