Delhi High Court
M/S Vijay Steel Tubes & Fittings ... vs M/S Apollo Pipes Ltd on 5 August, 2015
Author: Siddharth Mridul
#30
IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 05.08.2015
W.P.(CRL) 1821/2014 & CRL.M.A.13966/2014 (Stay)
M/S VIJAY STEEL TUBES & FITTINGS PVT LTD ..... Petitioner
Through: Mr. Ankur S. Kulkarni, Advocate
versus
M/S APOLLO PIPES LTD ..... Respondent
Through: None
CORAM:
HON'BLE MR JUSTICE SIDDHARTH MRIDUL
SIDDHARTH MRIDUL, J (ORAL)
1. The present is a petition under Article 226 and 227 of the Constitution
of India read with section 482 Cr.P.C., 1973 praying for quashing of CC
No.76/2013, under section 138 of Negotiable Instruments Act, 1881
(hereinafter referred to as „the said Act‟) pending before the learned
Metropolitan Magistrate, Karkardooma Courts, Delhi.
2. Despite service of notice, none has entered appearance on behalf of
the respondent-complainant.
3. Mr. Kulkarni, learned counsel appearing on behalf of the petitioner
invites my attention to a decision of this Court, rendered by my esteemed
brother A.K. Sikri, J., as he then was, in M.L. Gupta & Anr. vs. CEAT
Financial Services Ltd., reported as 136 (2007) DLT 308 to urge that a
complaint under section 138 of the said Act cannot be filed against the
present petitioner as on the date of the presentation of the cheque, the
petitioner-company was in liquidation and cannot be stated to have
committed any offence.
4. A perusal of the order passed by the Karnataka High Court in the case
of M/s. Religare Finvest Limited vs. Vijay Steel Tubes and Fitting Private
Limited, Company Petition No.70/2011 decided on 16.04.2012, annexed as
Annexure P-1 to the present petition at page No.10 reveals that the
petitioner-company having its registered office at 14, 1st Floor, 4th Cross
Nala Cross, Lal Bagh Road, Bengaluru, was directed to be wound up by the
High Court of Karnataka at Bengaluru by way of its order dated 16.04.2012.
The relevant paragraph of the said order is as follows:-
"7. Accordingly, the petition is allowed. The
respondent company is order to be wound up. The
Official Liquidator attached to this Court shall take
over the assets of the company and take further steps
in the matter for recovery of the amounts due to the
creditors and workmen. The petitioner company shall
deposit a sum of Rs.35,000/- as the initial expenses
before the Official Liquidator. The petitioner
company shall also take out paper publication in „The
Hindu‟ English news paper in this regard."
5. Mr. Kulkarni, learned counsel appearing on behalf of the petitioner
then invites my attention to a copy of the complaint instituted on behalf of
the respondent, which is annexed to the present petition as Annexure P-2,
which reveals that the subject cheque was presented for encashment by the
respondent on 18.12.2012 i.e. after the petitioner-company had been wound
up under the said order of the Karnataka High Court at Bengaluru.
6. In M.L. Gupta (supra), this Court was concerned with the following
issue, which is extracted below:-
"8. We are, however, concerned with the
position where cheque presented is dishonoured
and complaint is filed under section 138 of the
Negotiable Instruments Act against the company
and the Directors after the company has already
been ordered to be wound up. Whether such a
complaint would be maintainable is the question
and the legal position on this aspect is what needs
to be determined."
7. By its judgment and order, the aforesaid issue was determined by this
Court by observing as follows:-
"21. On the aforesaid averments, complaint under
Section 138 of the Negotiable Instruments Act cannot
be filed as on the date of presentation of the cheque the
company was in liquidation and cannot be stated to
have committed any offence. Even second and third
accused (petitioner herein)_ were not the Incharge of
the day-to-day affairs and conduct of the business of
the company on that date. No doubt there are
allegations of cheating as well and the complaint is
under section 420 read with section 120B of the IPC as
well. It would have reference to the date when the
cheques were issued with intent to cheat and complaint
to that extent may be maintainable if prima facie case
under these provisions is made out. However, the
summoning orders dated 29.07.2000 would show that
the cognizance of the alleged offence is taken only
after section 138 of the Negotiable Instruments Act
and not under section 420 read with section 120B of
the IPC. Since complaint under section 138 of
Negotiable Instruments Act is not maintainable if filed
after the winding up of the company, summoning order
issued is bad in law."
8. In view of the legal position, as enunciated by this Court in M.L.
Gupta (supra) and the facts as extracted above, the complaint instituted by
the respondent is not maintainable and the summoning order issued in
consequence thereof is bad in law.
9. The petition is accordingly allowed. The summoning order and the
subject complaint being CC No.76/2013, pending before the Court of learned
Metropolitan Magistrate, Karkardooma Courts, Delhi (Annexure P-1) are set
aside and quashed.
10. The writ petition is disposed of accordingly. The pending application
also stands disposed of.
11. Dasti.
SIDDHARTH MRIDUL, J
AUGUST 05, 2015
dn
