Tantia Constructions Ltd vs Krishna Hi-Tech Infrastructure ...
2022 Latest Caselaw 7078 Cal

                     IN THE HIGH COURT AT CALCUTTA
                    CRIMINAL REVISIONAL JURISDICTION
                                 APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI

                                CRR 172 of 2022
                             IA No. CRAN 2 of 2022
                                 CRAN 4 of 2022

                            Tantia Constructions Ltd.
                                      -Versus-
                  Krishna Hi-Tech Infrastructure Pvt. Ltd.


     For the Petitioner:            Mr. Swatarup Banerjee, Ad.,
                                    Mr. Avishek Guha, Adv.,
                                    Sk. Sariful Haque, Adv.,
                                    Ms. Akansha Chopra, Adv.


     For the Opposite Party:        Mr. A.K. Shrivastava, Adv.,
                                    Mr. Abhishek Sikdar, Adv.,
                                    Mr. Akash Sharma, Adv.


Heard on: 26 July, 2022.
Judgment on: 27 September, 2022

BIBEK CHAUDHURI, J. : -

1.

Having heard the learned Counsels for the parties, this Court is of

the view that the instant criminal revision can be disposed of on the basis

of the submission made by the learned Counsels in course of hearing of

the connected applications.

2. The Instant revisional application has been filed under Section 482

of Cr.P.C, 1973 for quashing of proceeding as against the

petitioner/accused No.1 in Complaint Case No.33889/2019 under

Section 406, 420 and 120B of the IPC pending before the 8th Metropolitan

Magistrate, Kolkata at the touchstone of Section 32A of Insolvency and

Bankruptcy Code, 2016 (IBC, 2016 for short). The petitioner has further

contended quashing of impugned criminal proceedings on the ground of

Section 14 of IBC, 2016. The opposite party has filed an application

bearing No. CRAN/2/2022 for vacating the impugned order for stay of

this Court.

3. Moratorium under Section 14 of IBC, 2016 ceased on 24.02.2022

when the Resolution Plan for the Petitioner/Corporate Debtor was

approved by NCLT, Kolkata in case bearing No. CP(IB) 148/KB/2018,

whereby the aforementioned ground becomes infructuous.

4. For the application of Section 32A of IBC, 2016 and in light of the

present matter, it is pertinent to determine the following two issues, i.e.,

i. Whether the offence as complained in the impugned criminal

proceedings has been alleged to be committed before the

initiation of corporate insolvency resolution process or during

such process?

ii. Whether the resolution plan has resulted in change in the

management or corporate debtor in consonance with the

provisions of Section 32A(1) of IBC, 2016?

5. With respect to Issue No.1, it is pertinent to note that the corporate

insolvency resolution process as against the Petitioner/Corporate Debtor

was initiated on 13.03.2019 when the application was accepted and the

Order of Moratorium under Section 14 of the IBC, 2016 was imposed by

NCLT, Kolkata in the aforementioned case. The complaint that

commenced the impugned criminal proceedings was filed on 22.07.2019

before the concerned court by the opposite party. Whereby, said alleged

offence so complained, took place before or during the corporate

insolvency resolution process and is covered under the ambit of Section

32A of IBC, 2016.

6. With respect to Issue No.2, it is observed that the petitioner has not

made specific submission in this regard. However, it is the submission of

the opposite party that the impugned complaint case does not concern

itself with the new directors that were appointed after takeover by the

Resolution Applicant in line with the Resolution Plan so approved by

NCLT dated 24.02.2022. It is their submission that they are primarily

aggrieved by the actions of petitioner when it was in control of erstwhile

Directors.

7. The contention of the opposite party that the petitioner herein does

not hold valid constituted power of attorney for filing the instant petition

merely because it has failed to mention that it has been authorized by the

new management of the petition, holds no value by virtue of the separate

juristic personally of the petitioner company.

8. In light of the above observation, it is directed that the Complaint

Case No. 33889/2019 stands quashed as against petitioner/accused No.

1 only, for any actions taken on or before 24.02.2022. Opposite Party is at

liberty to continue the said proceedings as against erstwhile Directors

and/or person's responsible for the actions of petitioner.

9. With the above direction, instant petition along with its applications

stands disposed off.

(Bibek Chaudhuri, J.)