IMPORTANT POINT
If the complaint is filed prior to the winding up orders passed against the company, and is withdrawn against the company after a winding up order is passed, such criminal proceedings can continue against the Directors.

Pradeep Nandrajog, J.—The question which falls for consideration in the present petition is: when the proceedings under section 138 of the N.I. Act against a company is dropped, can it continue against the directors of that company.

2. All the above captioned 5 petitions have been filed by the Rajeev Gupta a director of the company M/s. Sakura Seimitsu India Ltd.

3. Vide above captioned 5 petitions under section 482 of the Code of Criminal Procedure, 1973, a challenge is laid to the common order dated 18.7.2005 passed by the learned Additional Sessions Judge whereby revision petitions filed by the petitioner against the order dated 18.1.2005 passed by the learned Metropolitan Magistrate refusing to drop proceedings under section 138 of the N.I. Act against the petitioner were dismissed.

4. Briefly noted-relevant facts are that the respondent No. 2, M/s. Fortis Financial Ltd. filed 5 complaints under section 138 of the NI Act against the company M/s. Sakura Seimitsu India Ltd. In the said complaints, petitioner was impleaded as a co-accused on the ground that he is the director of the accused company and in-charge and responsible for the conduct of the business of the accused company.

5. The complaints contained the allegations that various cheques were issued on behalf of the accused company towards part discharge of its liability in favour of the complainant company and that said cheques were dishonoured by the drawee Bank on the ground of insufficiency of funds in the account. That the statutory notices of demand contemplated under section 138 of the NI Act were issued to the accused company as well as to the petitioner demanding payment of the amounts covered by the cheques, but no amount was paid. Hence, the complainant company alleged that both the accused are liable to be punished for the offence under section 138 of the NI Act in respect of each of the cheques.

6. Taking cognizance of the said complaints, learned Metropolitan Magistrate summoned the accused company as also its director i.e. the petitioner herein to face trial for an offence under section 138 of the NI Act.

7. Meanwhile during pendency of the said complaints, pursuant to an order passed by the Allahabad High Court the accused company was wound up and an Official Liquidator was appointed to take charge of all the assets and properties of the accused company.

Thereafter an application was filed by the Official Liquidator before the learned Metropolitan Magistrate stating that in view of the provisions of section 446 of the Indian Companies Act, 1956, the proceedings under section 138 of the NI Act against the accused company cannot be continued without taking permission from the Company Court.

8. Vide order dated 3.11.2004, holding that the section 446 of the Indian Companies Act, 1956 applies only to civil proceedings, learned Metropolitan Magistrate dismissed the application filed by the Official Liquidator.

9. The Official Liquidator chose not to appear before the learned Metropolitan Magistrate. An application was filed by the petitioner praying that the proceedings in question cannot be continued against him in the absence of the accused company. Vide order dated 18.1.2005, the said application of the petitioner was dismissed.

10. Against the said order of the learned Metropolitan Magistrate, revision petitions were filed by the petitioner. Vide Impugned order dated 18.7.2005, the learned Additional Judge dismissed the said revision petitions.

11. Aggrieved by the said dismissal of the revision petition, present petitions have been preferred by the petitioners.

12. A two-fold submission has been urged in the petition:-

(i) That the effect of order dated 18.7.2005 passed by the learned Metropolitan Magistrate was that the proceedings against accused company were dropped. That this amounted to review of an earlier order dated 18.1.2005 wherein the learned Metropolitan Magistrate had directed the Official Liquidator to appear on behalf of the accused compan