1. The question arises for consideration in this Crl.M.C is as to whether a complaint under Section 138 of the Negotiable Instruments Act (in short, 'the N.I.Act') can be filed against the company or its Directors including the Managing Director when the cause of action arises after the winding up of the company pursuant to the order passed by the court.

2. The former Managing Director and former Directors of Kshemanidhi Kuries and Loans Private Limited have approached this court to get them extricated from the clutches of prosecution proceedings pitted against them, consequent to the non-payment of the amount covered by the cheques issued by the said company. The contention of the petitioners is that the cause of action in Annexure-A1 complaint arose after passing the order of winding up of the company by the court.

3. The company involved in this Crl.M.C. will be referred to as “the company”. The cheque leaf issued by the company is dated 30.01.2010 and the amount covered by the cheque is Rupees seven lakh. When the said cheque was presented for encashment, the said cheque was dishonoured by the bank on 2.2.2010. The payee of the cheque issued notice to the company on 2.3.2010 calling upon the company to pay the amount. The company received the notice on 12.03.2010. As the company failed to pay the amount, Annexure-A1 complaint was filed before the Court of the Chief Judicial Magistrate, Thrissur on 27.3.2010 against the company and its directors for the offence under Section 138 of the N.I. Act. The learned Magistrate took cognizance of the offence and issued process against the petitioners, who are the accused persons in the above case. It was then that the petitioners challenged the criminal proceeding by means of the above Crl.M.C. contending that before arising the cause of action for filing the complaint, the company was wound up as per the order of the court.

4. The order of winding up of the company was passed on 30.9.2009 in Company Petition No.9 of 2009 of this Court. The complaint was filed in this case on 27.03.2010. The 15 days period after the receipt of notice in this case was complete on 27.03.2010. Therefore, there can be no doubt that the order of winding up of the company was passed prior to the arising of cause of action in this Crl.M.C.

5. The Apex Court in Pankaj Mehra and Another v. State of Maharashtra and Others [(2000) 2 SCC 756) had occasion to consider the question as to whether a company could escape from penal liability under Section 138 of the N.I.Act on the premise that a petition for winding up of the company had been presented and was pending during the relevant time. The Apex Court held that merely by reason of a winding up petition being presented, there was no bar or legal disability in filing complaint before the court. The cases decided by the Apex Court in Pankaj Mehra (supra) were cases where complaints were filed during the pendency of the petition for winding up and before passing the order of winding up by the court.

6. The question which arises for consideration in this case is whether the complaint is maintainable against the former Directors and the company if the cause of action arises after passing the order of winding up of the company. To answer this question, it is necessary to go through the provisions of the Negotiable Instruments Act as well as the provisions of the Companies Act. The offender in Section 138 of the N.I.Act is the drawer of the cheque. He alone would have been the offender thereunder, if the Act did not contain other provisions. It is because of Section 141 of the N.I. Act that penal liability under Section 138 of the N.I.Act is cast on other persons connected with the company. It will be profitable to extract Section 141 of the N.I.Act, which reads as follows:-

“141. Offences by companies. — (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsib