TMI Blog2015 (3) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... d pass appropriate order on that aspect in accordance with law. As regards the third accused is concerned, if she surrenders before the court below and moves for bail, then court below is directed to recall the warrant and after granting bail, permit her also to represent through counsel and consider the question of maintainability in view of Dashrath Rupsingh Rathod v. State of Maharashtra [ 2014 (8) TMI 417 - SUPREME COURT] decision of the hon'ble Supreme Court. Petition dismissed. - Crl. M.C. Nos. 4044, 2873 and 2874 of 2014 - - - Dated:- 3-3-2015 - K. RAMAKRISHNAN, J. For the Appellant : K.V. Sohan, Sreeja Sohan K. and Rovin Rodrigues For the Respondent : A. Ranjith Naraynan, A. Simi and S.K. Saju JUDGMENT K. Ramakrishnan, J. 1. Accused Nos. 2 and 3 in criminal proceedings under section 138 of the Negotiable Instruments Act, 1881, who are the managing director and director of the company facing liquidation have challenged the proceedings by filing these petitions under section 482 of the Code of Criminal Procedure, 1973. In Crl. M.C. No. 4044 of 2014, the petitioners are accused Nos. 2 and 3 in S.T. No. 162 of 2013 on the file of the Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain the complaints, as the allegation is that, the company has committed the offence and they are only acting as representatives of the company and they want to quash the proceedings on that ground by filing the above respective petitions. 6. Heard counsel for the petitioners in these cases, advocate Sri. K.V. Sohan and counsel appearing for the respondents representing the liquidator Sri K. Money, A. Renjith Narayanan and learned public prosecutor. 7. Counsel for the petitioners in all these cases submitted that, by virtue of section 446 of the Companies Act, 1956, which is now replaced by section 279 of the Companies Act, 2013, no proceedings shall be allowed to continue in respect of winding up company without the leave of the company courts. Counsel for the petitioner relied on the decision reported in Prof. P. Narayanan Kutty v. Official Liquidator [1998] KHC 99 : [1998] 1 KLT 525 : [1999] 96 Comp Cas 418 (Ker.) in support of his case. 8. Counsel for the respondents submitted that, suit or other proceedings mentioned in section 446 of the Companies Act, 1956, or present section 279 of the Companies Act, 2013, will not take in criminal proceedings under section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal may impose: Provided that any application to the Tribunal seeking leave under this section shall be disposed of by the Tribunal within sixty days. (2) Nothing in sub-section (1) shall apply to any proceeding pending in appeal before the Supreme Court or a High Court. 280. Jurisdiction of Tribunal.--The Tribunal shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of,-- (a) any suit or proceeding by or against the company; (b) any claim made by or against the company, including claims by or against any of its branches in India ; (c) any application made under section 233; (d) any scheme submitted under section 262; (e) any question of priorities or any other question whatsoever, whether of law or facts, including those relating to assets, business, actions, rights, entitlements, privileges, benefits, duties, responsibilities, obligations or in any matter arising out of, or in relation to winding up of the company, whether such suit or proceeding has been instituted, or is instituted, or such claim or question has arisen or arises or such application has been made or is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 138 of the Negotiable Instruments Act can end only in the conviction or acquittal of the accused in the case and no recovery of any amount covered by the dishonored cheques can be made in the criminal proceedings. As the criminal proceedings under section 138 of the Negotiable Instruments Act are not in respect of the assets of the company, the proceedings pending in the criminal courts cannot be stayed under section 446 of the Companies Act. Hence the proceedings initiated against the appellant under section 138 of the Negotiable Instruments Act before the criminal court cannot be stayed invoking section 446 of the Companies Act. 12. The decision relied on by counsel for the petitioners namely Prof. P. Narayanan Kutty v. Official Liquidator [1998] KHC 99 : [1998] 1 KLT 525 : [1999] 96 Comp Cas 418 (Ker) has been considered by the Division Bench and distinguished the same stating that, the dictum laid down in that decision is not applicable to proceedings under section 138 of the Negotiable Instruments Act. In view of the authoritative pronouncement by the Division Bench in this aspect, the contentions raised by counsel for the petitioners that the proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplaints (obviously including those where the accused respondent has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with our exposition of the law. If such complaints are filed refilled within thirty days of their return, they shall be deemed to have been filed within the time prescribed by law, unless the initial or prior filing was itself time barred. 13. It is submitted by counsel for the petitioner in these cases that, the second accused is now totally bed ridden and in coma and he is not able to appear in court and the third accused is his wife. As regards the second accused is concerned, if the petitioner can convince the court below that, he is unable to move on account of his illness and he is unable to understand things, then court below is directed to consider that application and consider the question of jurisdiction, if it is raised in view of Dashrath Rupsingh Rathod v. State of Maharashtra [2014] 3 KHC 362 (SC) : [2014] 9 SCC 129 : [2015] 191 Comp Cas 1 (SC), in his absence and he may be permitted to appear through counsel and pass appropriate order on that aspect in accordance with law. 14. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X
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