The nature of proceedings under the IBC and the NI Act is different, and the criminal prosecution under Section 138 of the NI Act would not stand terminated by the operation of the provisions of the IBC.

JUDGMENT :

SANJIV BERRY, J.

The petitioner has invoked the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. for quashing of impugned order dated 09.07.2021 (Annexure P-4) passed in complaint bearing No. NACT- 2492 of 2021 dated 18.01.2021 titled as “Anubhav Kapoor Vs. M/s Supertech Ltd & Ors.” under Section 138 of the Negotiable Instruments Act, 1881 (for short, 'the NI Act') (Annexure P-3) whereby summons have been issued to the present petitioner by the learned trial Court and further staying the impugned Complaint (Annexure P-3) along with summoning order 21.11.2022 (Annexure P-5) passed by the learned Judicial Magistrate First Class, Gurugram.

2. Learned Counsel appearing on behalf of the petitioner contends that the petitioner was the Director of M/s Supertech Ltd., which is now undergoing a Corporate Insolvency Resolution Process (CIRP) before the National Company Law Tribunal (for short, 'NCLT'), New Delhi Bench and an interim resolution professional has already been appointed. Learned counsel has also referred to the order dated 25.03.2022 passed by NCLT (Annexure P-1). He submits that by virtue of interim moratorium applied by the said order, the independent recovery as well as criminal proceedings cannot continue against the Directors by virtue of provisions of Sections 14 and 96 of the Insolvency and Bankruptcy Code, 2016 (hereinafter referred to as 'IBC').

3. Learned counsel further submits that the petitioner has been summoned as an accused under Section 138 of the NI Act. He contends that since the petitioner is no longer at the helm of affairs of the company, the amount due, if any cannot be honoured in the light of the interim moratorium order of the NCLT, and thus the petitioner cannot be summoned under Section 138 of the NI Act. Learned counsel vehemently submits that respondent No.1 cannot be allowed to avail two separate remedies for the same cause of action. Hence, the proceedings under Section 138 of the NI Act are liable to be quashed.

4. On the contrary learned counsel representing the respondent has assailed these arguments by submitting that the petition is not maintainable and is liable to be dismissed. He submitted that the pendency of proceedings before the NCLT under IBC does not bar the proceedings under Section 138 of NI Act which being penal in nature. In support of his argument he referred to a Three Judge Bench of the Hon’ble Supreme Court in Ajay Kumar Radheyshyam Goenka vs. Tourism Finance Corporation Of India Ltd : 2023 LiveLaw (SC) 195; and also in Sachin Goyal and another vs. M/s Rajasthan Trading Co. and another in CRM-M 16158 of 2023 decided on 29.03.2023.

5. I have heard the submissions made by the learned counsel for the parties and perused the relevant record.

6. In the present case the main point of dispute is as to whether during the pendency of the proceedings under the IBC, the proceedings under the Negotiable Instrument Act can continue simultaneously or not.

7. After considering the rival contentions and perusing the record, admittedly, in the present case the proceedings under IBC are pending before NCLT (Anneure P-1) and vide order (Annexure P-4) dated 09.07.2021 the petitioner has been summoned to face trial under Section 138 of Negotiable Instrument Act in a complaint titled as “Anubhav Kapoor Vs. M/s Supertech Ltd & Ors.”(Annexure P-3).

8. The law in this regard is settled in a recent Three Judge Bench of the Hon’ble Supreme Court in Ajay Kumar Radheyshyam Goenka’s case (supra) wherein it has been held as under :

“16. We have no hesitation in coming to the conclusion that the scope of nature of proceedings under the two Acts and quite different and would not intercede each other. In fact, a bare reading of Section 14 of the IBC would make it clear that the nature of proceedings which have to be kept in abeyance do not include criminal proceedings, which is the nature of proceedings under Section 138 of the N.I. Act. We are unable to appreciate the plea of the le