Cases referred :
1. Pankaj Mehta Vs. State of Maharashtra . 2000 ALL MR (Cri) 736 (S.C.) : 2000(2) ALL MR 461 (S.C.) : JT 2000 (2) SC II [ 4 ]
2. Anil Hada Vs. Indian Acrylic. 2000 ALL MR (Cri) 136 (S.C.) : 2000(1) ALL MR 722 (S.C.) : (2000) 1 SCC 1 [ 4 ]
3. Scan Organics Ltd. Vs. State of Maharashtra . 2000 ALL MR (Cri) 1863 [ 4 ]
Advocates appeared :
Mr. S. V. MARVADI for the Petitioner.
Mr. A. S. KHANDEPARKAR for Respondent No.1.
Mr. MIRZA, A.P.P. for State.
:- Rule. By consent Rule made returnable forthwith. Heard both sides.
2. This is a writ petition for quashing the complaint filed by the Respondent No.1 before the Metropolitan Magistrate, 5th Court , Dadar, Bombay under section 138 of the Negotiable Instruments Act. It is alleged in the complaint that the petitioner issued 3 cheques in favour of respondents in discharge of their liability. It is further alleged that all those cheques were dishonored. On dishonouring those cheques, notice envisaged under section 138 of the Negotiable Instruments Act has been sent on 14-09-1995 which was received by the petitioner. Subsequently the aforesaid complaint was filed by the respondent No.1.
3. Several contentions have been raised by the petitioners in this writ petition. But all those contentions need not be discussed in this writ petition because most of those contentions can be raised by the petitioner before the trial court at various stages. But however, the petitioner has raised important legal contention in this writ petition that the company petition No. 125 of 1995 was pending for winding up of the petitioners company and therefore, complaint before the Magistrate filed by the respondents No.1 is not maintainable. According to the petitioner, since the company petition has been filed under section 433, 434 and 439 of the Companies Act of 1956 as consequence of which section 536 of the Companies Act becomes applicable.
4. The very question has been considered and decided by Supreme Court in its two recent judgments in Pankaj Mehta & Anr. etc. Versus State of Maharashtra & Ors. reported in JT 2000 (2) SC II : 2000 ALL MR (Cri) 736 (S.C.) : 2000(2) ALL MR 461 (S.C.) and in Anil Hada Versus Indian Acrylic.... reported in (2000) 1 Supreme Court Cases 1 : 2000 ALL MR (Cri) 136 (S.C.) : 2000(1) ALL MR 722 (S.C.). In the aforesaid judgments the Supreme Court has held that the pendency of the liquidation proceedings of the Company is not a ground for refusing the complaint under section 138 of the Negotiable Instruments Act. It is also held in that case that even the Directors of the company which is under liquidation is liable in case there is proof that the company has committed offence under section 138 of the Negotiable Instruments Act. Relying on these decisions, this Court has also decided on 8th March, 2000 Criminal Writ Petition No. 2186 of 1999 between Scan Organics Ltd. & Another Versus State of Maharashtra and another, 2000 ALL MR (Cri) 1863.
5. In the result, I find no ground to quash the proceedings. Writ Petition is therefore dismissed. Rule is accordingly discharged. No order as to costs.
6. The petitioner is at liberty to raise all other contentions before the trial court at appropriate stage. The parties to appear before Lower Court on 10th July, 2000.
Certified copy expedited.
Parties to act on the ordinary copy of this order issued by P.A. and authenticated by the Sheristedar of this Court.
Petition dismissed.
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