The legal framework applied by the court focused on the consequences of winding up of a company and the liability of the directors in case of default, emphasizing the need to consider the facts of the case and the distinction between winding up orders passed on merits and those resulting from consent terms.

JUDGMENT :

1. Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard finally.

2. These applications under section 482 of the Code of Criminal Procedure, 1973 (the Code) assail the orders of issue of process against the applicants for an offence punishable under section 138 read with 141 of the Negotiable Instruments Act, 1881 (the Act, 1881) passed by the learned Metropolitan Magistrate, 28th Court, Esplande, Mumbai.

3. The background facts leading to these applications can be stated in brief as under:-

a] M/s. Rangara Industries Private Limited (accused No.1) (hereinafter referred “M/s. Rangara”) is a company in liquidation. The applicant Nos. 1 and 2 were the Directors of M/s. Rangara. The later owed a certain liability towards M/s. Surajbhan Rajkumar Private Limited (M/s. Surajbhan), a company incorporated under the Companies Act, 1956. Alleging that M/s. Rangara was not in a position to discharge its debt, the complainant instituted a Company Petition No. 207 of 2013 under section 439 of the Companies Act, 1956 for winding up of M/s. Rangara.

b] By an order dated 24th November, 2014 the said Company Petition was admitted. Subsequently consent terms were executed in the said Company Petition between M/s. Surajbhan and M/s. Rangara, whereunder M/s. Rangara undertook to deposit an amount of Rs. 1,50,00,000/- with the Prothonotary and Senior Master of this Court. Upon the said deposit, the parties agreed, the claims of M/s. Surajbhan be referred to arbitration by a sole arbitrator. Recording the consent terms and undertakings therein, the Company Petition came to be disposed of by an order dated 30th January, 2015.

c] On 27th February, 2015 a joint motion was made before the learned Company Judge. The Court was informed that the parties resolved the dispute by entering into consent terms dated 26th February, 2015. In accordance with the consent terms and the undertakings therein, above referred order dated 30th January, 2015 was set aside and the Company Petition came to be disposed.

d] Under the consent terms it was, inter alia, agreed that M/s. Rangara would pay to M/s. Surajbhan a sum of Rs. 4,50,00,000/- towards full and final settlement of the claim of M/s. Surajbhan and its sister concern M/s. Shree Durga Iron & Steel Co. Ltd. A schedule of payment was agreed by and between the parties. After initial payment of 60 lakhs in two installments, the balance sum of Rs.3,90,00,000/- was agreed to be paid in 30 monthly installments of Rs. 13 lakhs during the period from 15th June, 2015 to 15th November, 2017. Upon payment, the consent terms provided for withdrawal of prosecution and giving consent for allowing the appeal preferred by M/s. Rangara. In case of default in payment, the parties agreed, that the Company Petition would stands allowed in terms of prayer clause (a) and (b).

e] Asserting that M/s. Rangara committed default in payment of the amount in accordance with the consent terms and thus the complainant M/s. Surajbhan was constrained to deposit the cheques, and consequent to the dishonour of the cheques M/s. Rangara failed to comply with the demand in the statutory notices, M/s. Surajbhan, the complainant, has lodged five complaints for the offences punishable under section 138 read with 141 of the Act, 1881.

f] Cheque Nos.089447, 089448 and 089449 drawn for Rs. 13 lakhs each payable on 15th October, 2015, 15th November, 2015 and 15th December, 2015, respectively, are the subject matters of Complaint Case No. 645/SS/2016.

Cheque Nos. 089450, 089451 and 089452 drawn for Rs. 13 lakhs each payable on 15th January, 2016, 15th February, 2016 and 15th March, 2016, respectively, are the subject matters of Complaint Case No. 1629/SS/2016.

Complaint Case No. 5872/SS/2016 pertains to cheque Nos.089453, 89454 and 089455 drawn for Rs. 13 lakhs each payable on 15th April, 2016, 15th May, 2016 and 15th June, 2016 respectively. Whereas, Complaint Case No.893/SS/2017 is in respect of cheques Nos. 0894