Madras High Court
Akash K.Domadiya vs M/S.Samunnati Agro Solutions Pvt.Ltd on 2 August, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.Nos.10905 & 10975 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.08.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.Nos.10905 & 10975 of 2024
and
Crl.M.P.Nos.7446 & 7506 of 2024
Akash K.Domadiya
Director,
M/s.Tradohub B2B Limited ... Petitioner in both cases
Vs.
M/s.Samunnati Agro Solutions Pvt.Ltd.,
Rep.by its Power Agent Sri.K.Amudan ... Respondent in both cases
Common Prayer: Criminal Original Petitions are filed under Section 482
of Criminal Procedure Code, pleased to call for records of complaint
bearing S.T.C.Nos.171 & 2792 of 2022 pending on the file of learned V
Fast Track Metropolitan Magistrate, Saidapet, Chennai and quash the
same.
For Petitioner in both cases : Mr.J.Magesh forfeiture
M/s.Nathan and Associates
For Respondent in both cases : Ms.Rukmani Venugopal
COMMON ORDER
The petitioner herein being the signatory of the cheque for Rs.2
Crores drawn in favour of theM/s.Samunnati Agro Solutions Pvt.Ltd., is
before this Court to quash the complaints instituted under Section 138 of
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Crl.O.P.Nos.10905 & 10975 of 2024
Negotiable Instruments Act, on the ground that the petitioner is not the
owner of the company M/s.Tradohub B2B Limited and he resigned from
the company before the initiation of proceedings and being a non
Executive Director acting on the instance of the owner cannot be
vicariously held liable.
2. Further, it is also contended that the NCLT, Ahmedabad has
initiated insolvency proceedings against the company and proceedings
had commenced from 16.11.2021. The affairs of the company is now
vested with Insolvency Resolution Professional Mr.Sachin Naveen Sinha
vide order dated 06.03.2023. Therefore, it is contended that the
proceedings cannot continue after the dispute between the accused
company and the creditors been seized by the NCLT. The entire affairs of
the company now been monitored and the Managing by the respondent
police and IBC provides for moratorium and protection from any
prosecution or proceedings against the erstwhile management.
3. The learned counsel appearing for the respondent /
complainant states that the subject cheque was issued by the
accused/petitioner to discharge the legally enforceable debt arising from
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Crl.O.P.Nos.10905 & 10975 of 2024
the business transaction of outsourcing between the complainant
company and the M/s.Tradohub B2B Limited. The subject cheque was
issued by the petitioner to discharge the liability of the company, in
which, he was the Director. The cheque which is the subject matter of the
complaint was drawn on 02.09.2020 much prior to the NCLT
proceedings and appointment of Resolution Professional. Even according
to the petitioner, he resigned from the Directorship of the company
M/s.Tradohub B2B Limited only on 16.11.2021. Hence it is submitted
that the complaint against the petitioner has been rightly taken
cognizance by the Court and whatever the defence available with the
petitioner, those has to be raised only in the trial.
4. Both the counsels rely upon the judgment of the Hon'ble
Supreme Court rendered in Ajay kumar Radheshyam Goenka Vs.
Tourism Finance Corporation of India Ltd reported in 2023
LIVELAW (SC) 195. In this judgment the Hon'ble Supreme Court had
discussed about the vicarious liability of the Directors of the company
and the company which has subjected to insolvency proceedings under
IBC. The conclusion drawn by the Hon'ble Supreme Court in that case
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Crl.O.P.Nos.10905 & 10975 of 2024
reads as below:-
“86.(a) After passing of the resolution
plan under Section 31 of the IBC by the
adjudicating authority & in the light of the
provisions of Section 32A of the IBC, the
criminal proceedings under Section 138 of the
NI Act will stand terminated only in relation to
the corporate debtor if the same is taken over
by a new management.
(b) Section 138 proceedings in relation
to the signatories/directors who are
liable/covered by the two provisos to Section
32A(1) will continue in accordance with law.”
5. The facts of the case in hand is that the cheque issued by the
petitioner on behalf of the company, in which, he was the Director. His
liability under Section 138 of Negotiable Instruments Act will not get
extinguished in view of the subsequent appointment of Resolution
Professional. Neither his resignation from the Directorship subsequent to
the issuance of the cheque will protect him from prosecution. He being
the signatory of the cheque and issued from the account maintained by
him, he is liable to face criminal prosecution.
6. Taking into account that the petitioner being the Director of
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Crl.O.P.Nos.10905 & 10975 of 2024
the company which owe money to the complainant, all the defence raised
in the quash petition are to be tested in the trial and not under Section
482 of Cr.P.C., Hence, this Criminal Original Petitions stand dismissed.
Consequently, the connected Criminal Miscellaneous Petitions are also
dismissed.
02.08.2024
Neutral Citation : Yes/No
rpl
To
The V Fast Track Metropolitan Magistrate, Saidapet, Chennai
Dr.G.JAYACHANDRAN,J.
rpl
https://www.mhc.tn.gov.in/judis
Crl.O.P.Nos.10905 & 10975 of 2024
Crl.O.P.Nos.10905 & 10975 of 2024
02.08.2024
https://www.mhc.tn.gov.in/judis
