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TMI Blog2019 (4) TMI 1819X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruments 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 offence punishable under Section 138 of the Negotiable Instruments Act. After appearance, the petitioner no.2 prayed for exemption from personal appearance before the Court in connection with the proceedings pending against him. On 30.07.2018, the said prayer of the petitioner no.2 under Section 205 of the Code of Criminal Procedure was rejected by the Learned Magistrate and the petitioner no.2/accused was directed to remain present in the Court on the next date i.e. on 31.08.2018. By filing the present application under Section 482 of the Code of Criminal Procedure, the petitioners have challenged the legality and validity of the proceedings under Section 138 of the Negotiable Instruments Act, pending before the Leaned Magistrate. Present opposite party is the complainant of the proceeding under Section 138/141 of the Negotiable Instruments Act, 1881 pending before the Learned Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 30.03.2017 and again became the Chairman and Managing Director with effect from 19.04.2018. He was a suspended Director for the period from 30.03.2017 to 18.04.2018 by operation of law. The cause of action to file the complaint against the accused arose during the said period. By virtue of the order dated 30.03.2018 passed by the Kolkata Bench of the National Company Law Tribunal an Interim Resolution Professional was appointed. Emphasis has been given to the provisions as contained in Section 14 of the Insolvency and Bankruptcy Code, 2016, and it has been contended that the company was under moratorium at the relevant point of time. The petitioners admitted the factum of receipt of the demand notice under Section 138/141 of the Negotiable Instruments Act, 1881, but the petitioners have now claimed that they were under judicial restraint from making payment of the amount covered by the impugned cheque to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 control of Interim Resolution Professional and petitioner no.2 had no role to play regarding the management of the company. Though in their application under Section 482 of the Code of Criminal Procedure the petitioners have cited several decisions, but during the course of hearing Learned Advocate for the petitioners has not laid stress on the decisions as mentioned in the application under Section 482 of the Code of Criminal Procedure. On the contrary, Learned Advocate appearing for the opposite party/complainant has vigorously argued that the proceedings under Section 138 of the Negotiable Instruments Act, pending before the Learned Magistrate is well maintainable. It is his specific contention that the provisions of moratorium as contained in Section 14 of the Code, has no manner of application to criminal proceedings. In support of his contention he has placed his reliance on the decision in Indorama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el 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 debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002); d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor. (2) The supply of essential goods or services to the corporate debtor as may be specified shall not be terminated or suspended or interrupted during moratorium period. (3) The provisions of sub-section (1) shall not apply to such transactions as may be notified by the Central Government in consultation with any financial sector regulator. (4) The order of moratorium shall have effect from the date of such order till the completion of the corporate insolvency resolution process. Provided that where at any time during the corporate insolvency resolution process period, if the Adjudicating Authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 Instruments Act, which were introduced subsequently by way of amendment in the said Act, in the year 1988, it being a subsequent statute, it would necessarily override the provisions of general statute, like, the Companies Act. In this connection I would like to mention paragraph 17 of the Judgment in Indorama Synthetics (I) Ltd. Nagpur Vs. State of Maharashtra and others reported in 2016(4) Mh.L.J.249. Paragraph 17 of the above referred judgment runs as under:-.. "17. Thus, the main object of section 138 of N. I. Act, which can be inferred, is to safeguard the credibility of commercial transactions and to prevent bouncing of cheques by providing a personal criminal liability against the drawer of the cheque in public interest. No civil liability or any liability against the assets of the drawer of the cheque is contemplated under Section 138 of the N. I. Act. Hence, it follows that the provisions of section 446(1) of the Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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