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2018 Supreme(P&H) 2859
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice P.B. Bajanthri
CRM M-21382 of 2018 (O&M)
Ashwani Chawla
v.
M/s Impulse Overseas Pvt. Ltd.
{Decided on 05/09/2018}
Mr. Ashish Sanghi, DAG, Haryana.
Ms. Munisha Gandhi, Sr. Advocate with Mr. Viraj Gandhi, Advocate, for the complainant.
Dishonour of Cheque--Offence by Company--Winding up of Company--Expression of suit or other legal proceedings in Section 446 of the Company’s Act, 1956 or Section 279 of the Company’s Act 2013 does not include criminal complaints filed under S.138 N.I Act
Headnote:
Negotiable Instruments Act, 1881, S.138 and S.142--Dishonour of Cheque--Offence by Company--Winding up Company--Impleading of official liquidator--Expression of suit or other legal proceedings in Section 446 (1) and the expression ‘suit or proceedings’ in Section 446 under Chapter 2 of para 7 of the Company’s Act, 1956 or Section 279 of the Company’s Act 2013 does not include criminal complaints filed under Section 138 of Negotiable Instruments Act. (Para 7)
Section 138 of the Negotiable Instruments Act has overriding effect against Section 446 of the Companies Act. Chapter XVII dealing with the penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts consisting of Section 138 to 142 incorporated in the Negotiable Instruments Act by the Central Act 66 of 1988 w.e.f. 1.4.1989. Thus special provisions are enacted with the subject and specific intention of safeguarding and sustaining the credibility of commercial transactions. Thus, provisions are incorporated in the Negotiable Instruments Act whereas the entire provisions of the Companies Act including Section 446 were in force. Therefore, it has to be presumed that Parliament enacted those provisions fully aware of the provisions of the Companies Act including Section 446. Therefore, the subsequent Act enacting certain special provisions has got overriding effect over the provisions of statute though contained in the special provisions. (Para 9)
JUDGMENT
Mr. P.B. Bajanthri, J.:- In the present petition, petitioner has questioned the validity of order dated 02.11.2017 passed by JMIC whereby petitioner’s application filed under Sections 446/457/536 of Companies Act, 1956 for impleading the official liquidator on behalf of the petitioner-company and for compliance of order dated 23.08.2017 passed by Delhi High Court, has been dismissed, as well as, order of the ASJ dated 06.04.2018 by which revision petition filed by the petitioner has been dismissed.
2. Petitioner filed application under Sections 446, 457 and 536 of Act, 1956 and it was dismissed on 15.09.2017. In this background, revision petition bearing No. 55 of 2018 filed against order dated 02.11.2017 passed by JMIC through which said court dismissed application dated 15.09.2017 moved by the petitioner under Sections 446, 457, 536 of Companies Act, 1956 for issuing notice to the official liquidator being appointed on behalf of accused company by Delhi High Court and to stay the proceedings temporarily till the appearance of the liquidator. It is asserted that JMIC has erred by declining said application and completely overlooked and ignored specific observations of Delhi High Court / Company Court dated 23.08.2017. As per said observations of Delhi High Court, it is the duty of the petitioner to seek leave of appeal of Delhi High Court for proceeding further with present proceedings and that in absence of such leave, present complaint is not even maintainable. Earlier also, petitioner filed application under Sections 446, 457 and 536 of Companies Act, 1956 (for short ‘Act, 1956’) before JMIC and it was dismissed on 16.10.2014 and it has attained finality. Delhi High Court had no occasion to peruse dismissal order dated 16.10.2014 by which petitioner’s 1st application was dismissed. In the present matter, company is the prime accused if offence under Section 138 Negotiable Instruments Act, 1881 has been committed and only thereafter responsibility of petitioner can be held under Section 141 of the Act as a vicarious liability for the affairs of the company. The company now can only be represented through the official liquidator appointed by Delhi High Court. Revision petition be accepted, impugned order dated 15.09.2017 passed by JIMC may kindly be set aside, directions be issued to the official liquidator for his appearance in the present matter and trial court be directed to comply with order dated 23.08.2017 passed by Delhi High Court and to stay proceedings temporarily till the appearance of the liquidator.
3. Learned counsel for the petitioner submitted that during pendency of proceedings under Section 138 of Negotiable Instruments Act in a complaint case before JMIC if the company is wound up in that event Section 446 of the Company’s Act 1956 now it is Section 279 under Company’s Act, 2013 is attracted to the extent of impleading liquidator for the purpose of further proceedings with the leave of the Tribunal (Company Tribunal) till such a permission is given further proceedings are to be stayed. Both the Courts below JMIC and ASJ have not appreciated applicability of Section 446 on the score that winding up of Company was during pendency of the criminal complaint and was also after issuance of cheque which was the subject matter of complaint under Section 138 of the Negotiable Instruments Act. Learned counsel for the petitioner relied on the following decisions:-
(i) 1994 (1) BC 85 Committee of Management of Baranagore Jute Factory Vs. State of West Bengal Para 11.
(ii) 1998 (5) COMP L.J. 99 Saurabh N. Soparkar Vs. Official Liquidator Renco Gears Limited.
(iii) 2007 (3) BC 643 Rajender Steels Limited in Liquidation in Re. and Anr. Vs. Official Liquidator High Court, Uttar Pradesh. Para 5.
(iv) 2007 (2) DCR 36 Suresh K. Jasani Vs. Mrinal Dyeing and Manufacturing Company Ltd. and others. Para 5.
4. Learned counsel for the petitioner further submitted that Courts below have not examined application of Section 2
