Madras High Court
S.C.P.Dhanapal vs A.Arokiasami
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.2130 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
15~07~2022 20~07~2022
Coram:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.2130 of 2022 &
Crl.M.P.No.928 of 2022
S.C.P.Dhanapal ... Petitioner
Vs
A.Arokiasami ... Respondent
PRAYER: Criminal Original Petition filed under Section 482 of Criminal
Procedure Code, to call for the records in C.C.No.363 of 2020 pending before
the Fast Track Judicial Maigstrate No.I, Coimbatore and quash the same.
For petitioner : Mr.Iyengar Shubharanjani Ananth
For Respondent : Mr.R.Vijayakumar
ORDER
This petition has been filed to quash the private complaint filed in C.C.No.363 of 2020 pending before the Fast Track Judicial Maigstrate No.I, https://www.mhc.tn.gov.in/judis Page 1 / 7 Crl.O.P.No.2130 of 2022 Coimbatore for the offences under sections 138 and 142 of the Negotiable Instruments Act.
2. The brief facts leading to the filing of this complaint under section 138 of the Negotiable Instruments Act is as follows :
The complainant has supplied UPVC frames for windows to M/s.Evocon Pvt. Ltd. The amount outstanding due to supply of the material is Rs.7,92,875/. Due to the outstanding amount, the accused had requested the complainant to buy a flat in Silicon Shelter for himself for the materials supplied. The complainant agreed to buy the flat and paid a sum of Rs.34,62,767/- and in total a sum of Rs.42,55,642/- was paid to the Evocon account for the flat No.4A6 in Silicon Shelter. The total value of the flat is Rs.47,95,125/-. A Memorandum of Understanding was also entered between the parties in this regard. The balance amount payable is only Rs.3,12,776/-. When the matter stood thus, the home buyers have filed a petition before the NCLT. Subsequently, the complainant had given a police complaint against the accused. After that, the accused agreed to pay the amount and requested to grant some more time to execute the earlier agreement. He has also issued four post dated cheques and in the event the flat is not registered within 120 days, the cheques can be encashed. As the accused had failed to register the agreement, on the https://www.mhc.tn.gov.in/judis Page 2 / 7 Crl.O.P.No.2130 of 2022 instructions of the accused, when the cheques bearing Nos.646933 and 6469334 were presented on 06.06.2020, the same were returned unpaid for the reason of 'insufficent funds'. After issuing statutory notice, the present complaint has been filed. The same has been sought to be quashed by the petitioner.
3. Admitting the sale of the flat, it is contended by the petitioner before this Court that due to considerable delay in completion of the projects undertaken by the company, the home buyers of Eden Garden, filed a petition before NCLT under the Insolvency and Bankruptcy Code for resolution and the Company was admitted for a Corporate Insolvency Resolution Process on 29.05.2019. In the above proceedings, the complainant has also made a claim of Rs.50,78,412/-. The Resolution Plan submitted by the Resolution applicant included the Complainant's claim and the same was passed with requisite majority by the Committee of Creditors on 13.02.2020, wherein the complainant also participated with a vote in favour of the Resolution plan and the resolution plan was also accepted. Therefore, all the claims of the Operational Creditors has been extinguished. Hence, prosecution under section 138 of the Negotiable Instruments Act is not maintainable.
https://www.mhc.tn.gov.in/judis Page 3 / 7 Crl.O.P.No.2130 of 2022
4. The learned counsel appearing for the petitioner further submitted that the cheques were obtained by coercion and the same is not enforceable in the eye of law. The resolution plan is approved including the flat and the flat was not sold and towards the above amount, the petitioner has also issued 4 post dated cheques.
5. The proceedings before the NCLT is not disputed. The home buyers have also gone for the NCLT proceedings in which the resolution plans have been approved, wherein the complainant is also one of the claimant. Further it is the contention of the learned counsel appearing for the petitioner that even after approval of the resolution plan, the flat has not been sold to him. It is the contention of the learned counsel for the respondent that the Corporate Insolvency proceedings are only against the company, whereas, the cheque in question has been issued by the petitioner in his individual capacity and it is for the petitioner to dislodge the legal presumption before the trial Court.
6. Having regard to the above facts, particularly Corporate Insolvency proceedings are only against the company and the cheque has been issued in the individual capacity, this Court is of the view that it is for the petitioner to dislodge the legal presumption before the trial Court. Merely because of the https://www.mhc.tn.gov.in/judis Page 4 / 7 Crl.O.P.No.2130 of 2022 NCLT proceedings, the petitioner cannot take advantage of the resolution plan, which is against the company. Further plea of coercion is matter of evidence and it is for the petitioner to prove the same in trial.
7. Admittedly, cheques have been issued by the Director of the company, viz., the petitioner herein, in his individual capacity. In such view of the matter, even if there is any memorandum of resolution and the plans have been approved, the same would bar the prosecution only as against the company and not against the individual. In this regard, Apex Court in a case of P. Mohanraj and Others vs. Shah Brothers Ispat Pvt. Ltd., reported in [2021 SCC Online SC 152] has held that the moratorium applies to the Corporate Debtor under sections 138 and 141 of the Negotiable Instruments Act and no proceedings can continued or be initiated because of a statutory bar, such proceedings can be initiated or continued against the persons mentioned in Section 141(1) and (2) of the Negotiable Instrument Act. This being the case, it is clear that the moratorium provision contained in Section 14 of the IBC would apply only to the corporate debtor, the natural persons mentioned in Section 141 continue to be statutorily liable under Chapter XVII of the Negotiable Instruments Act. In such view of the matter, quashing of the private complaint does not arise at all.
https://www.mhc.tn.gov.in/judis Page 5 / 7 Crl.O.P.No.2130 of 2022
8. Accordingly, this Criminal Original Petition is dismissed. . Consequently, connected miscellaneous petitions are closed.
20.07.2022
vrc
Index : Yes
Internet : Yes
Speaking Order
To
The Judicial Magistrate No.1,
Fast Track Court, Coimbatore.
https://www.mhc.tn.gov.in/judis
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Crl.O.P.No.2130 of 2022
N.SATHISH KUMAR, J.
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Crl.O.P.No.2130 of 2022
20.07.2022
https://www.mhc.tn.gov.in/judis
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