Shakvai Mumtaj Beham vs M/S.United Enterprises
2022 Latest Caselaw 11842 Mad

Citation : 2022 Latest Caselaw 11842 Mad
Judgement Date : 5 July, 2022

Madras High Court

Shakvai Mumtaj Beham vs M/S.United Enterprises on 5 July, 2022

                                                                                  Crl.O.P.No.15199 of 2022


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 05.07.2022

                                                         CORAM:

                              THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

                                                 Crl.O.P.No.15199 of 2022
                                                            and
                                             Crl.M.P.Nos. 8496 & 8497 of 2022

                  Shakvai Mumtaj Beham                                                  .. Petitioner

                                                           Versus

                  M/s.United Enterprises
                  Represented by its
                  Managing Partner Mr.N.Srinivasan
                  No.15/3, Bharathi Nagar, Ranipet
                  Ranipet District – 632 403                                          .. Respondent

                  PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C., to call

                  for the entire records in pursuant to the S.T.C.No.385 of 2020 pending on the

                  file of Judicial Magistrate Court, Ranipet District.



                                    For Petitioner          : Mr.T.R.Prabakaran

                                                          ORDER

This Criminal Original Petition has been filed seeking to quash the

Chargesheet in S.T.C.No.385 of 2020 pending on the file of Judicial Magistrate

Court, Ranipet District, for the offence under Section 138 read with Section https://www.mhc.tn.gov.in/judis

Crl.O.P.No.15199 of 2022

142 of Negotiable Instrument Act, 1881.

2. The present petitioner has been filed to quash the cheque complaint in

S.T.C.No.385 of 2020 mainly on the ground that the she is not a Director as

alleged by the complainant, whereas, she has resigned from the post of

Director following due process of law i.e., w.e.f. 15.02.2020. However, the

cheques were issued only on 25.09.2022 pursuant to her resignation as a

Director. Therefore, it is submitted that no complaint arraying her as accused is

maintainable. Further submits that there is moratorium against the accused

under Section 14 of the Insolvency and Bankruptcy Code, 2016 against the

Company. Hence, submitted that complaint is not maintainable.

3. At the outset, I am unable to persuade myself to the submission of the

learned counsel. 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:

“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 https://www.mhc.tn.gov.in/judis said debtor during the corporate insolvency resolution

Crl.O.P.No.15199 of 2022

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, proceedings under

138/141 cannot 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 https://www.mhc.tn.gov.in/judis

Crl.O.P.No.15199 of 2022

Chapter XVII of the Negotiable Instruments Act.

4. In such a view of the matter, the petitioner being the director of the

company namely M/s.Saalim Shoes (P) Ltd, has to be prosecuted as per the

above judgment.

5. Such view of the matter, the application to quash as against the

petitioner is dismissed and at this stage, the learned counsel for the petitioner

citing the age of the petitioner seeks exemption of personal appearance before

the Trial Court. Considering the same, personal appearance of the petitioner