9911796707
TMI Blog2015 (3) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the offence under section 138 of the Negotiable Instruments Act. Earlier the case was taken on file as C.C. No. 583 of 2008 on the file of the Judicial First Class Magistrate Court, Koyilandy. Since the present petitioners did not appear, the case against them was split up and refilled as C.C. No. 863 of 2013 as against the first petitioner, which is pending before the Judicial First Class Magistrate Court-I, Koyilandy, and as S.T. No. 162 of 2013 as against the second petitioner and now pending before the Judicial First Class Magistrate Court-II, Koyilandy. 2. Crl. M.C. No. 2873 of 2014 was filed by accused Nos. 2 and 3 in S.T. No. 1405 of 2009, on the file of the Judicial First Class Magistrate Court, Perambra-II, which was taken on file on the basis of a private complaint filed by the second respondent against the third respondent-company and the present petitioners as accused Nos. 1 to 3 alleging offence under section 138 of the Negotiable Instruments Act. 3. Crl. M.C. No. 2874 of 2014 was filed by accused Nos. 2 and 3 in S.T. No. 276 of 2009 of the Judicial First Class Magistrate Court, Perambra-I, which was taken on file on the basis of a private complaint filed by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 446 of the Companies Act, 1956, which is replaced by sections 279 and 280 of the Companies Act, 2013. 10. Section 446 of the Companies Act, 1956 and sections 279 and 280 of the Companies Act, 2013, reads as follows: "446. Suits stayed on winding up order.--(1) When a winding up order has been made or the official liquidator has been appointed as provisional liquidator, no suit or other legal proceeding shall be commenced, or if pending at the date of the winding up order, shall be proceeded with, against the company, except by leave of the Tribunal and subject to such terms as the Tribunal may impose. (2) 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 391 by or in respect of the company; (d) any question of priorities or any other question whatsoever, whether of law or fact, which may relate to or rise in course of the winding up of the company; whether such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments Act cannot be stayed invoking the power under section 446 of the Companies Act, 1956, in paragraph 9 of the judgment as follows (page 818 of 100 Comp Cas): "...the expression 'legal proceedings' in section 446 of the Companies Act is wide enough to include criminal prosecution also, such criminal proceedings must be in relation to the assets of the company, and, as the proceedings under section 138 of the Negotiable Instruments Act are not in respect of the assets of the company, section 446 has no application and the proceedings cannot be stayed invoking section 446 of the Companies Act. A consideration of the above decision would make it clear that the expression 'other legal proceedings' in section 446 of the Companies Act does not take in all proceedings and the proceedings under the special Act have an overriding effect over the general provisions under the Companies Act. The object of winding up of a company by the court was to facilitate the protection and realisation of its assets with a view to ensure an equitable distribution thereof among those entitled. Once the court has taken the assets of a company under its control or has passed an order for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 191 Comp. Cas. 1 (SC), is applicable or not has to be considered by that court on the basis of the allegations in the complaint, as to whether the drawee bank is situated within the jurisdiction of that court or within the jurisdiction of some other court and also whether the evidence in the case has been started or not as mentioned in paragraph 20 of the judgment, which reads as follows (page 24 of 191 Comp Cas): "20. We are quite alive to the magnitude of the impact that the present decision shall have to possibly lakhs of cases pending in various courts spanning across the country. One approach could be to declare that this judgment will have only prospective pertinence, i.e., applicability to complaints that may be filed after this pronouncement. However, keeping in perspective the hardship that this will continue to bear on alleged accused/respondents who may have to travel long distances in conducting their defence, and also mindful of the legal implications of proceedings being permitted to continue in a court devoid of jurisdiction, this recourse in entirety does not commend itself to us. Consequent on considerable consideration we think it expedient to direct that only t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
