The complaint under Section 138 of the Negotiable Instruments Act can be maintained even after the winding up of the company, as established in M.L. Gupta & Anr. vs. Ceat Financial Services Ltd.

JUDGMENT

Anu Malhotra, J. - The matter has been reserved for orders vide order dated 12.07.2022.

2. The petitioner vide the present petition has sought the quashing of the summoning order dated 15.10.2014 of the Court of the learned ACMM East KKD in Complaint Case No.9168/2019 filed by the respondent No.2 against the petitioner with the avowed contention of the petitioner that the accused company M/s Catmoss Retail Private Limited arrayed as accused No.1 in the Complaint Case No.9168/2019 of which the petitioner herein was the Director arrayed as accused No.2 to the complaint had gone into liquidation, in as much as, vide order dated 28.02.2013 in Co.Pet. 36/2013 titled Small Industries Development Bank vs. Catmoss Retail Pvt. Ltd., this Court had ordered for the winding up of the company and the Official Liquidator was appointed and all assets, offices and bank accounts were taken over by the Official Liquidator, and that the dishonored cheque bearing No. 206731 dated 30.06.2013 for an amount of Rs.8,00,000 is dated subsequent to the order of appointment of the Official Liquidator which is of the date 28.02.2013.

3. Reliance was placed on behalf of the petitioner on the verdict of this Court in M.L. Gupta & Anr. vs. Ceat Financial Services Ltd. 2006 SCC OnLine Del 1448 with observations in para 21 thereof which read to the effect:-

'21. On the aforesaid averments, complaint under Section 138 of the Negotiable Instruments Act cannot be filed as on the date of presentation of the cheque the company was in liquidation and cannot be stated to have committed any offence. Even second and third accused (petitioners herein) were not the Incharge of the day-to-day affairs and conduct of the business of the company on that date. No doubt there are allegations of cheating as well and the complaint is under Section 420 read with Section 120B of the IPC as well. It would have reference to the date when the cheques were issued with intent to cheat and complaint to that extent may be maintainable if prima facie case under these provisions is made out. However, the summoning orders dated 29.7.2000 would show that the cognizance of the alleged offence is taken only after Section 138 of the Negotiable Instruments Act and not under Section 420 read with Section 1208 of the IPC. Since complaint under Section 138 of the Negotiable Instruments Act is not maintainable if filed after the winding up of the company. summoning order issued is bad in law.'

4. A perusal of the application filed by the petitioner before the learned Trial Court seeking discharge which application was dismissed as withdrawn vide order dated 10.09.2021 indicates that reliance was also placed on behalf of the petitioner on the verdict of the Hon'ble High Court of Karnataka in M/s Religare Finvest Limited vs. Vijay Steel Tubes and Fitting Private Limited Company Petition No.70/2011 with observations in para 7 and 21 thereof which read to the effect:-

"7. Accordingly, the petition is allowed. The respondent company is order to be wound up. The Official Liquidator attached to this Court shall take over the assets of the company and take further steps in the matter for recovery of the amounts due to the creditors and workmen. The petitioner company shall deposit a sum of Rs.35,000/- as the initial expenses before the Official Liquidator. The petitioner company shall also take out paper publication in the Hindu" English newspaper in this regard. "

"21. On the aforesaid averments, complaint under Section 138 of the Negotiable instruments Act cannot be filed as on the date of presentation of the cheque the company was in liquidation and cannot be stated to have committed any offence. Even second and third accused (petitioner herein) were not the In-charge of the day-to-day affairs and conduct of the business of the company on that date. No doubt there are allegations of cheating as well and the complaint is under section 420 read with section 120B of the IPC as well. It would have ref