Madras High Court
M/S.Saalim Shoes (P) Ltd vs M/S.Vasavi Marketing on 15 July, 2022
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
Crl.O.P.No.16183 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.07.2022
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Crl.O.P.No.16183 of 2022
and
Crl.M.P.Nos. 9266 & 9268 of 2022
1.M/s.Saalim Shoes (P) Ltd
Represented by its Managing Director
Mr.Arcot Mohammed Saalim
No.1-A, Regency Apartment, No.5, 1st Lane
Nungambakkam High Road, Chennai – 600 034
Factory at No.63/1, 63/2
Ammor Road, Manthangal
Ranipet, Ranipet District- 632 403
Tamil Nadu
2.Arcot Mohammed Saalim
3.Arcot Mohammed Aslam
4.Arcot Mohammed Ashfaque .. Petitioners
Vs.
M/s.Vasavi Marketing
Represented by its Power Agent
Mr.R.Nagendra Prasad
Head Office at No.88/A, Vakkil Street
Ranipet, Walaja Taluk
Ranipet District .. Respondent
Prayer: Criminal Original Petitions filed under Section 482 of Cr.P.C., to call for
the entire records in pursuant to the S.T.C.No.20 of 2021 pending on the file of
Judicial Magistrate Court, Ranipet District and quash the same.
1/6
https://www.mhc.tn.gov.in/judis
Crl.O.P.No.16183 of 2022
For Petitioners : Mr.T.P.Prabakaran
ORDER
This Criminal Original Petition has been filed seeking to quash the Chargesheet in S.T.C.No.20 of 2021 pending on the file of Judicial MagistrateCourt, Ranipet District, for the offence under Section 138 read with Section 142 of Negotiable Instrument Act, 1881.
2. The present petition has been filed to quash the cheque complaint in S.T.C.No.20 of 2021 mainly on the ground that the management of the petitioner company was taken over by the Corporate Debtor appointed by National Company Law Tribunal, Division Bench – I, Chennai and there was a moratorium under Section 14(1) of the Insolvency and Bankruptcy Code, 2016. Therefore, it is submitted that no complaint is maintainable as against the petitioner company and its Directors.
3. At the outset, I am unable to persuade to the submission of the learned counsel. Hon'ble Apex Court in the case of P. Mohanraj and Others vs. Shah Brothers Ispat Pvt. Ltd., reported in [2021 SCC Online SC 152], after dealing with various judgements of the Apex Court in paragraph 103 held as follows: 2/6
https://www.mhc.tn.gov.in/judis Crl.O.P.No.16183 of 2022 “103. Since the Corporate debtor would be covered by the moratorium provision contained in Section 14 of the IBC, by which continuation of Section 138/141 proceedings against the corporate debtor and initiation of Section 138/141 proceedings against the said debtor during the corporate insolvency resolution process are interdicted, what is stated in paragraphs 51 and 59 in Aneeta Hada (supra) would then become applicable. The legal impediment contained in Section 14 of the IBC would make it impossible for such proceeding to continue or be instituted against the corporate debtor. Thus, for the period of moratorium, since no Section 138/141 proceeding can continue or be initiated against the corporate debtor 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 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.'' As the moratorium applies to the Corporate Debtor, no proceedings under 138/141 can continue or be initiated because of a statutory bar, such proceedings 3/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16183 of 2022 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 continuing to be statutorily liable under Chapter XVII of the Negotiable Instruments Act.
4. In such a view of the matter, the petitioners being the directors of the company, have to be prosecuted as per the above judgment.
5.Accordingly, the complaint as against the the petitioner company alone is quashed. In respect of others, the application to quash is dismissed and at this stage, the learned counsel for the petitioners citing the age of the petitioner namely Mr.Arcot Mohammed Saalim seeks exemption of personal appearance before the Trial Court. Considering the same, personal appearance of the above mentioned petitioners before the Trial Court is dispensed with, except when called for in required circumstances, the afore mentioned petitioners shall be present on the date as fixed by the Trial Court. However, the Trial Court shall proceed as against the other accused and dispose of the same in accordance with law. 4/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16183 of 2022
6. With the above directions, this Criminal Original Petitions stands partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.
15.07.2022 Internet: Yes ksa-2/shk To
1.The Judicial Magistrate Court, Ranipet District
2. The Public Prosecutor High Court, Madras.
N.SATHISH KUMAR, J.
5/6 https://www.mhc.tn.gov.in/judis Crl.O.P.No.16183 of 2022 ksa-2 Crl.O.P.No.16183 of 2022 and Crl.M.P.Nos. 9266 & 9268 of 2022 15.07.2022 6/6 https://www.mhc.tn.gov.in/judis