PANKAJ MEHRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Can a company escape from penal liability under S. 138 of the Negotiable Instruments Act (for short "the NI Act") on the premise that a petition for winding up of the company has been presented and was pending during the relevant time A Division Bench of the Bombay High Court held that the company cannot avert its liability on the mere ground that such a petition was presented prior to the company being called upon by a notice to pay the amount of the cheque. By holding so, the Division Bench dismissed a batch of writ petitions filed by different companies challenging the criminal proceedings initiated against them in different Criminal Courts for the offence under S. 138 of the NI Act. We have now to deal with the same question in this batch of appeals filed by special leave.

(2.) Though different cases now before us have differing facts we are not bothering ourselves with such differences. The common features in all the appeals, which alone are relevant for dealing with the aforesaid question, can be culled out from one of the appeals. The company involved in the said sample appeal will be referred to as "the Company." The cheque which the company issued bore the date 30-10-1996 and the amount covered by the cheque was Rs. 6,72,432/-. (There is a contention that the cheque was actually drawn much before that date). When the cheque was presented for encashment the drawee bank dishonoured it on 26-12-1996. The payee of the cheque issued a notice to the Company on 21-12-1996 (sic) calling upon it to pay the amount. As the Company failed to pay the amount a complaint was filed before the Magistrate on 29-1-1997 against the Company and two of its directors for the offence under S. 138 of the NI Act.

(3.) The Magistrate who took cognizance of the offence issued process to all the accused. It was then that the accused challenged the criminal proceedings by means of a writ petition filed before the Bombay High Court, on the premise that a petition for winding up of the Company has been filed on 27-5-1996 before the Court concerned and a provisional liquidator was appointed by that Court two years later i.e. on 21-4-1998.