IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : 12.05.2025 Ashutosh Mahindru ... Petitioner Versus Capri Global Capital Limited through its authorised representative ...Respondent CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU Present:- Mr. Pallav Saxena, Advocate (through V.C.) and Mr. Chakitan V.S.Papta, Advocate for the petitioner.

Mr. Harsh Chopra & Mr. Satnam Singh, Advocates for the respondent.

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MAHABIR SINGH SINDHU, J.

Present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) read with Section 582 of the Bharatiya Nagarik Suraksha Sanhita, 2024 (sic- 2023) [for short ‘BNSS’] for quashing of the impugned order dated 25.09.2024 (P-1), passed by learned Judicial Magistrate 1^st Class, Gurugram (for short ‘JMIC’), whereby an application dated 29.08.2024 (P-6), moved by petitioner, under Section 101 read with Section 238 of the Insolvency and Bankruptcy Code, 2016 (for short ‘IBC’), for stay of proceedings in Complaint No.NACT/10692/2018 (having registration dated 22.05.2018), titled as “M/s Capri Global Capital Limited Versus M/s Shri Krishna Tankers Pvt. Ltd. and others”, under Sections 138/141/142 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) read with Section 200 Cr.P.C. (as amended), was declined.

(2) BRIEF FACTS (2.1) Respondent-M/s Capri Global Capital Limited filed a complaint dated 22.05.2018 (P-2) through Yogesh Sharma, Authorized Representative/ Person against (i) petitioner-Ashutosh Mahindru; (ii) Vishal Sharma, both Directors/Authorized Signatories of M/s Shri Krishna Tankers Private Limited as well as (iii) M/s Shri Krishna Tankers Private Limited (for short ‘accused’), under Sections 138, 141 & 142 of the N.I. Act read with Section 200 Cr.P.C., with the allegations that aforesaid accused had availed loan from respondent to the tune of ` 27,50,000/- and in partial discharge of their legal liability, they had issued cheque bearing No.309253 dated 12.04.2018 for a sum of ` 26,00,000/-, which got dishonoured vide memo dated

17.04.2018 with the endorsement “Funds Insufficient”.

(2.2) During the pendency of aforesaid complaint, petitioner (accused No.2 therein), moved an application dated 29.08.2024 (P-6) under Section 101 read with Section 238 of the IBC, seeking stay of proceedings in present case on the ground that moratorium was declared under Section 101 of IBC by the National Company Law Tribunal (for short ‘NCLT’). The said application was dismissed vide impugned order dated 25.09.2024 (P-1), passed by learned JMIC. Hence, the present petition.

(3) CONTENTIONS ON BEHALF OF THE PETITIONER (3.1) It is contended by learned Counsel for the petitioner that in view of the provisions of Sections 96 & 101 of IBC, there is a complete and unequivocal bar on continuation of proceedings before learned JMIC under the N.I. Act.

(3.2) Further contended that an application (P-6) under Section 101 read with Section 238 of IBC has wrongly been rejected by learned JMIC while passing the impugned order dated 25.09.2024 (P-1) in view of the fact that proceedings are not criminal in nature; rather the same are ‘quasi criminal’. Reference in this regard has been made to “M. Abbas Haji Versus T.N. Channakeshava”, (2019) 9 SCC 606.

(3.3) Also contended that during the pendency of complaint under Section 138 of N.I. Act, State Bank of India filed a petition (P-4) bearing No.C.P.(IB) 714/PB/2021, titled as “State Bank of India Versus Mr. Ashutosh Mahindru” before the NCLT for initiation of Insolvency Resolution Process under Section 95 of the IBC on the premise that petitioner was the personal guarantor for credit facilities availed by the principal borrower, namely, M/s Advance Surfactants India Limited under the provisions of IBC.

(3.4) Again contended that provisions of Section 14 of IBC are not applicable to the personal guarantor and non obstante clause under Section 238 of IBC is having an overriding effect over provisions of N.I. Act; hen