9911796707
TMI Blog2024 (3) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... nother; Sunil Kumar Srivastav and another; Sandeep Kumar and another; Davinder Singh and another; R.K. Trading and another; Rajeev Kaushal and another; Anil Saxena and another; M/s Brij Lal Jain & Sons and another And Kabir Sodhi Versus M/s Walsons Services Pvt. Ltd. and another; Surinder Kumar Dwivedi and another And Gurmeet Sodhi Versus Ramphal Singh and another And Vijay Kumar and another Versus Jitendera Singh and another And Jitendra Singh Sodhi and another Versus Rudal Prasad Yadav and another; Rajiv Kumar and another; M.L. Sharma and another Hon'ble Mr. Justice Mahabir Singh Sindhu For the Petitioner : Mr. Viren Sibal, Advocate, for the petitioner(s) in all the petitions. For the Respondent : Mr. Pankaj Bali, Advocate for respondent Nos.1 & 2 in CRM-M-45748-2023, Mr. Anuj Dewan, Advocate for respondent No.1 in CRM-M Nos.63838 &63990 of 2023, Mr. Kartik Bansal, Advocate for respondent No.1 in CRM-M-39674-2023, Mr. Chetan Kapoor, Advocate for respondent No.1 in CRM-M-39707 & 52844-2023 Mr. Rahul Bansal, Advocate, and Mr. Rishabh Jain, Advocate for respondent No.1 in CRM-M-52445-2023. Mr. Yogesh Putney, Senior Standing Counsel, and Mr. Vaibhav Gupta, Advocate for respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Vs. Monnet Ispat and Energy Ltd., SLP (Civil) 6483-2018 decided on 10.08.2018; (vi) Dena Bank Vs. Bhikhabhai Prabhudas Parekh and Company & ors., (2000) 5 SCC 694; (vii) Rakesh Bhanot Vs. M/s Gurdas Agro Pvt. Ltd. (SLP (Criminal) No.6087 of 2023, order dated 16.05.2023); (viii) Vijay Kumar Ghai Vs. Pritpal Singh Babbar (P&H) (CRM-M-22685-2021 decided on 04.07.2022). 6. Per contra, learned counsel for the respondent No.1 while opposing the prayer, submitted that law is well settled by Hon'ble the Supreme Court in the judgment of Goenka's case (supra) to the effect that proceedings pending under Section 138 of the NI Act are not for recovery. Rather, these are penal in character and a person may face imprisonment and/or fine or both, but there is no such provision under the IBC. Hence, the nature & scope of proceedings under both the Acts is quite different and as such, the impugned order does not require any interference by this Court. Further contended that petitioners along with other co-accused are facing prosecution for cheating, forgery of records and causing loss to the tune of Rs.1301.67 crores to the Punjab National Bank. 7. Heard learned counsel for the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter dated 5.1.15 issued by the accused to the complainant Ex.C16; challan no. ITNS280 dated 17.3.15 Ex.C17; original cheque no 398304 dated 25.2.2015 amounting to Rs 1 Crore Ex.C18; memo of bank dated 18.3.15 Ex.C19; copy of legal notice dated 27.3.15 Ex.C20; original postal receipts dated 27.3.15 Ex.C21 to Ex.C25; copy of Indian Post R Net Tracking Record collected form the Internet on 20.4.15 Ex.C26 to Ex.C30. 4. From the perusal of preliminary evidence produced by the complainant and documents, a prima facie case under Section 138 of the Negotiable Instruments Act, is made out against the accused. Accordingly, accused is ordered to be summoned to face trial for the said offence for 21.7.2015 on filing of PF and copy of complaint within 7 days. Dasti summon be issued, if so requested. Long date is given due to summer vacations. Pronounced; 11.5.2015 Sd/- Sub Divisional Judicial Magistrate, Dera Bassi" 8.2. Subsequently, in view of the Negotiable Instruments (Amendment) Ordinance 2015 (No.6 of 2015) promulgated on 15.06.2015, the complaint was transferred by the SDJM to the Court of learned Chief Judicial Magistrate, Chandigarh, vide order dated 21.07.2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 313 Cr.P.C. was recorded on 15.03.2019 and they opted to lead evidence in defence; however, despite repeated opportunities, no DW was produced by the petitioners. Since the case was falling under the category of Action Plan 2019; therefore, last opportunity was granted on 15.10.2019 for concluding the defence evidence and the matter was fixed for final arguments on 24.10.2019. 8.7 Despite availing various opportunities, neither arguments were addressed, nor any defence witness was produced; rather on 30.07.2021, petitioners filed an application to interdict the proceedings pending before learned JMIC, and which is recapitulated as under:- "DCIT versus M/s Kudos Chemie Ltd. Application to interdict the proceedings u/s 138 & 141 of NI Act till the end of moratorium period. Respectfully Showeth, 1. That the above mentioned matter is pending before this Hon'ble Court and is fixed for today i.e. 30th July'2021. 2. That the accused of the company M/s Kudos chemie Ltd. moved an application u/s of Insolvency and Bankruptcy code, 2016. 3. That the company has been declared insolvent vide order dated 05.07.2019 by the competent authority, order is attached as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that 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 that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years', or with fine which may extend to twice the amount of the cheque, or with both:" Also noteworthy that under Section 141 of the NI Act, a Company as well as every person incharge thereof and responsible for conduct of its business have also been made liable for punishment. 12. Hon'ble the Supreme Court in P. Mohanraj's case (supra), while dealing with the moratorium provisions in terms of Section 14 of the IBC vis-à-vis continuation of proceedings under Section 138/141 of the NI Act, in para 77, held as under:- ".....Since the corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nature of proceedings which have to be kept in abeyance do not include criminal proceedings, which is the nature of proceedings under Section 138 of the N.I. Act. We are unable to appreciate the plea of the learned counsel for the Appellant that because Section 138 of the N.I. Act proceedings arise from a default in financial debt, the proceedings under Section 138 should be taken as akin to civil proceedings rather than criminal proceedings. We cannot lose sight of the fact that Section 138 of the N.I. Act are not recovery proceedings. They are penal in character. A person may face imprisonment or fine or both under Section 138 of the N.I. Act. It is not a recovery of the amount with interest as a debt recovery proceedings would be. They are not akin to suit proceedings. 17. It cannot be said that the process under the IBC whether under Section 31 or Sections 38 to 41 which can extinguish the debt would ipso facto apply to the extinguishment of the criminal proceedings. No doubt in terms of the Scheme under the IBC there are sacrifices to be made by parties to settle the debts, the company being liquidated or revitalized. The Appellant before us has been roped in as a signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isos to Section 32A(1) will continue in accordance with law." In view of the legal position discussed hereinabove, there remains no doubt that Signatories/Directors cannot escape their penal liability under Section 138/141 of the NI Act. A fortiori, Section 96 of the IBC, inter alia, envisages that during the interim moratorium period, any legal action or proceeding pending in respect of 'any debt' shall be deemed to have been stayed. Since, proceedings in the present case under the NI Act are not in respect of any debt; rather penal in nature and can invite imprisonment for a term which may extend to two years or fine which may extend to twice the cheque amount or with both. Hence, in such a scenario, it cannot be countenanced that continuation of the proceedings under NI Act, against both the petitioners being Managing Director/Director of the company, deserve to be stayed or that Section 96 of the IBC would be treated as a bar to that effect, in any manner. 16. Since Goenka's case (supra) is the latest three-judge Bench judgment by Hon'ble the Supreme Court rendered on 15.03.2023 and as such, in view of the mandate of Article 141 of the Constitution, this Court is bound to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
