A complaint under Section 138 of the NI Act is not maintainable after the company has been ordered to be wound up.

ORDER

1. This petition under Section 482 of the Cr.P.C. has been preferred by the applicants for quashment of Criminal Complaint No. 3732/2018 initiated against the applicants under Section 138 of the Negotiable Instruments Act, 1881 (herein after referred as 'NI Act').

2. Facts of the case in short are that respondent/complainant filed a criminal complaint under Section 138 of the NI Act against the applicants claiming that the cheque No. 000413 dt. 16/02/2018 of Rajkot Nagrik Sahkari Bank Ltd., for Rs.4,24,800/- was issued by the company M/s. Plethico Pharmaceuticals Ltd. In their favour, which was presented in the bank on 17/02/2018 and the said cheque was return unpaid on 18/02/218 with the note 'Income Tax Notice 1 . Thereafter, the respondent gave a statutory notice to the applicants and even after the service of notice, neither the applicants has filed the reply of the said notice nor they have paid the cheque amount. Therefore, the respondent/complaint made a complaint against the applicants before the Court of Additional Chief Judicial Magistrate, Indore. The learned Magistrate took the cognizance against the applicants for the commission of offence punishable under Sections 138 of the NI Act, vide order dated 27/07/2018, which was got registered as Criminal Complaint No. 3732/2018 Feeling aggrieved with the aforesaid order of taking cognizance, the applicants have preferred the present petition before this Court.

3. Learned counsel for the applicants submitted that the company has gone in liquidation and before the date of issuance of notice under Section 138 of the NI Act, the Official Liquidator was appointed by the High Court, vide order dated 14/05/2018 and he had taken physical possession of the Company M/s Plethico Pharmaceuticals Ltd., thus, there was no chance that the applicants would have received the notice dated 23/05/2018. It is also submitted that the cheque issued by the company was returned by the bank as the bank account of the said company with Rajkot Nagrik Sahkari Bank Ltd., was put on hold by Income Tax Department, therefore, the applicants were not at fault for return of the cheque amount. It is further submitted that the applicants have no administrative or financial control over the day to day affairs of the company as winding up proceedings have been initiated, therefore, the applicants even though willing to pay the cheque amount, could not pay the same to the respondents. As per Section 279 of the Companies Act, 2013 no proceedings could be proceeded against the company without leave of the company court, which ordered winding up and therefore, the proceedings initiated under Section 138 of the NI Act are void ab-initio .

4. It is also submitted by the learned counsel for the applicants that on the date of presentation of cheque in question, the said company was in liquidation and cannot be stated to have been committed any offence. It is further submitted that the applicant No.1 was appointed as Managing Director of the said company on 04/12/1991 and he continued to be Managing Director of the company till 17/09/2013, applicant No.2 was appointed as Director on 05/02/2016 and he continued to be Director till 21/10/2016; whereas, the applicant NO.3 was appointed as Director on 20/08/1994 and he continued to be director of the said company till 17/09/2013 i.e. till the date of presentation of the winding up petition. It is also submitted that as the directors were not in-charge of day to day affairs and conduct of the business of the company on that date, therefore, the complaint cannot be proceeded against the directors of the company, therefore, the applicants are not committed any offence under Section 138 of the NI Act as alleged against them. Hence, learned counsel for the applicants prays for quashment of Criminal Complaint No. 3732/2018 initiated against the applicants under Section 138 of the NI Act.

5. On the other hand, learned counsel for the respondent opposed the application by