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TMI Blog2021 (7) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... ACKAR (7008) FOR THE RESPONDENT(S) NO. 2 MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR (2) FOR THE RESPONDENT(S) NO. 1 JUDGMENT 1. Both these petitions involve identical questions on law and facts and hence, they are decided by this common judgment. 2. RULE. Learned Additional Public Prosecutor Ms. Bhatt appearing for respondent No.1 and learned advocate Mr. Nandish Thackar appearing for respondent No.2 waive service of notice of rule on behalf of the respective respondents. With the consent of both the sides, the matters are heard today finally. 3. In Special Criminal Application No.8577 of 2019, the petitioners, original accused Nos.1 & 2, have challenged the order dated 27.08.2019 passed by the Court of learned Additional Chief Judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. On 14.08.2015 the trial Court concerned issued process against the petitioners for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the "NI Act"). 4.1 In January 2018, on a petition filed by one of the Financial Creditors under Section 7 of the IBC, the Company was admitted for initiation of Corporate Insolvency Resolution Process (CIRP) and moratorium under Section 14 of the IBC was declared vide order dated 16.07.2019 passed by the National Company Law Tribunal, Mumbai Bench in CP (IB) No.1880 / NCLT / MB / 2018. 4.2 In August 2019, the petitioners preferred application Exhibit-70 before the trial Court praying for stay of the proceedings under the NI Act on the ground that the Company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s covered under Section 14 of the IBC. 6.1 In support of his submissions, learned advocate Mr. Thackar placed reliance upon a recent decision of the Apex Court in the case of P. Mohanraj and others V. Shah Brothers Ispat Pvt. Ltd., 2021 SCC OnLine SC 152, more particularly, on the observations made in para-103, which reads thus:- "103. Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing, namely :- (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgment, 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 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 own ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, a criminal proceeding which may result in the assets of the corporate debtor being depleted as a result of having to pay compensation, which can amount to twice the amount of the cheque that has bounced, would directly impact the corporate insolvency resolution process in the same manner as the institution, continuation or execution of a decree in such suit in a civil Court for the amount of debt or other liability. 10. Section 141 of the NI Act speaks of persons in charge of and responsible to the company for the conduct of the business of the company "as well as the company". The words "as well as the company" appearing in Section 141 of NI Act make it absolutely clear that when the company can be prosecuted, then only the persons men ..... X X X X Extracts X X X X X X X X Extracts X X X X
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