TMI Blog2019 (7) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 138 NI Act is that the cheque issued by the account holder must be from the account maintained by account holder with the drawer-Bank for discharge in whole or in part of any debt or other liability. In the present case, it is evident that the proceedings against the company were initiated under the provisions of IB Code 2016 and the order in terms of Section 14 of IB Code was passed on 21.07.2017. The provisions of IB Code 2016 makes it absolutely clear that whenever a corporate debtor is facing the proceedings before the adjudicating authority (NCLT), then the control and management of the said corporate debtor can be vested with the Interim Resolution Professional. There is no conflict between the parties regarding the material facts including the proceedings before the NCLT and its consequences - Petition allowed. - CRM-M-14537-2018, CRM-M-15771-2018, CRM-M-16489-2018, CRM-M-16483-2018, CRM-M-14537-2018 - - - Dated:- 1-7-2019 - Mr. Justice Manoj Bajaj For the Petitioner(s) : Mr. Iqbal Singh Saggu, Advocate For the Respondent : Mr. Deepak Vashisth, Advocate, Mr. Jagjot Singh, Advocate for Mr. Kunal Dawar, Advocate, Mr. Akash Yadav, Advocate for M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner (accused No.2). According to the complaint, only ₹ 2,15,181/- was due and recoverable, as a sum of ₹ 74,024/- was paid in cash after return of the cheque bearing No.005106. The cheques bearing Nos.005108 and 005109 upon presentation were returned by drawee-Bank through return memo dated 14.09.2017 with remarks Account Blocked . The complainant proceeded to serve the statutory notice dated 04.10.2017 which was served upon the accused persons on 09.10.2017. The complaint further revealed that the accused had sent the reply dated 16.10.2017 to the said legal notice, wherein a false and frivolous defence had been set up to evade the payment of the dues to the complainant. Finally, as the demand raised by the complainant was not adhered to, therefore, it compelled the complainant to institute a complaint dated 13.11.2017 seeking prosecution of the accused under Sections 138, 141 and 142 NI Act. In support of the complaint, complainant-Narender Singh examined himself as CW-1 in the pre-summoning evidence and the documents Exhibit C-1 to Exhibit C-15 were also tendered. The trial Court after examining the pre-summoning evidence and the fact that the alleged cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, learned counsel appearing on behalf of the State contends that though the State has been arrayed as one of the respondents, but the main contest lies between the respondent No.2 (complainant) and the petitioner, whereas respondent No.3 is accused No.1/company and therefore is proforma party. The other respondent (complainant) has neither filed any reply to controvert the pleadings contained in the petition(s) nor has disputed the fact that the alleged notice dated 04.10.2017 was duly replied by the petitioner through his response dated 16.10.2017. On behalf of the respondent No.2, it is argued that of course the provisions of Section 138 NI Act do contemplate that the penal provisions would be attracted in case the cheque in question is dishonoured on account of insufficient funds or the amount exceeds the arrangement , but these provisions have been interpreted on number of occasions by this Court as well as by the Hon'ble Supreme Court, wherein it was held that in cases where the account is closed or payment was stopped by drawer even then complaint under Section 138 NI Act would be maintainable. It is vehemently argued that on the same analogy, the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable under the above provision were highlighted which read as under:- (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iii) that cheque is returned by the bank unpaid. either because of the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other judgments on the issue, the Hon'ble Supreme Court held that the provisions of Section 138 NI Act cannot be interpreted narrowly because if argument of the drawer is accepted, it would defeat the legislative intent. Similarly, where the drawer had stopped the payment and the cheque in question was dishonoured, whether it would be punishable under Section 138 NI Act was another question posed before the Hon'ble Supreme Court, in M.M.T.C Ltd. and Anr Vs. Medchl Chemicals and Pharma (P) Ltd. and Anr, 2001 (1) SCC 234 , wherein following observations were made:- It has been held that even though the cheque is dishonoured by reason of 'stop payment' instruction an offence under Section 138 could still be made out. It is held that the presumption under Section 139 is attracted in such a case also. The authority shows that even when the cheuqe is dishonoured by reason of stop payment instructions by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge, in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the stop payment instruc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be sufficient to establish that account is being maintained by the account holder, unless the said account holder holds the authority and control over the said account. In other words, if an account holder is deprived off his authority, control and dominion over the bank account, it cannot be said that the account is being maintained by the said account holder. Now while adverting to the facts of this case, it is evident that the proceedings against the company were initiated under the provisions of IB Code 2016 and the order in terms of Section 14 of IB Code was passed on 21.07.2017. The provisions of IB Code 2016 makes it absolutely clear that whenever a corporate debtor is facing the proceedings before the adjudicating authority (NCLT), then the control and management of the said corporate debtor can be vested with the Interim Resolution Professional. It is also not disputed by learned counsel for the parties that Sh. Virender Singh already stands appointed as Interim Resolution Professional who is seized of the management and operation of the corporate debtor (accused No.1). Admittedly, the post dated cheques were given containing the dates as 27.06.2017 and 27.07.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque. The reply dated 16.10.2017 (Anenxure P-4) is reproduced below:- 1. That para No.1 of your legal notice is admitted hence needs no reply. 2. That para No.2 of your legal notice is correct and admitted. 3. That para No.3 of your legal notice is correct and admitted. 4. That para No.4 of your legal notice is correct and admitted. 5. That para No.5 of your legal notice it is submitted that my client intimated you not to present the above said cheques because Hon'ble National Company Law Tribunal, New Delhi vide order dated 21.07.2017 have blocked the account as well as moveable and immoveable properties of my client under Section 7 of the Insolvency and Bankruptcy Code, 2016 read with Rule 4 of the Insolvency and Bankruptcy (application to adjudicating Authority) Rule 2016. The copy of the order dated 21.7.2017 is attached herewith. 6. That in reply to para No.6 of your legal notice it is submitted that my client has replied above in detail in para No.5 of the reply. 7. That para No.7 of your legal notice is wrong and denied. My client had not guilty intention from the inception and my client dishonestly with a view to cause wrongful loss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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