ASHISH MEHRA Vs. BYWAYS INDIA PVT. LTD.

JUDGEMENT

(1.) By way of these petitions filed under Sec. 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.'), the petitioners seek quashing of Complaint Case No. 4350/2018, titled 'M/s. Byways India Pvt. Ltd. vs. M/s. Zynke Exports Pvt. Ltd.', pending before the learned Metropolitan Magistrate, West District, Tis Hazari Courts, New Delhi ('Trial Court').

(2.) Brief facts of the case, as per the complaint filed under Sec. 138 of Negotiable Instruments Act, 1881 ('NI Act') are that the complainant i.e. M/s. Byways India Pvt. Ltd., a manufacturer and supplier of woven labels, paper tags, paper stickers and allied products, and the accused no. 1 i.e. M/s. Zynke Exports Pvt. Ltd., engaged in the business of ready-made garments, were having business relations with each other. As stated, the complainant had been supplying the material to the accused since 1/4/2016 on orders being placed by the accused and the accused had always been satisfied from the quality and quantity of the material supplied by the complainant. It was also stated that the complainant had been maintaining the books of accounts in the regular course of business and had been duly crediting the payments made by the accused company in its books of accounts. It was alleged that initially, the accused company had been regular in making the payments against the goods, but eventually, it had started making defaults in payments and as per the books, there was an outstanding amount of Rs.12,78,510.00 as on 2/6/2017. The complainant had made several requests to the accused company to make outstanding payments and ultimately had sent a demand notice on 13/4/2018 vide which the accused persons were directed to clear the outstanding amount. Thereafter, in the first week of May 2018, accused no. 2 i.e. Ashish Mishra had telephonically contacted the complainant company and had asked the AR of the company to collect the cheque from the office of accused company. Upon such request, the AR of the complainant company had visited the office of accused where he had met both accused no. 2 i.e. Ashish Mishra and accused no. 3 i.e. Ramji Sharma and the said persons had issued and handed over the cheque bearing number 750468, dtd. 18/5/2018, drawn on Punjab National Bank, Sector 27, Noida, Uttar Pradesh amounting to Rs.12,52,940.00 in discharge of the part liability of the accused company on the assurance that the cheque would be encashed upon its presentation. Thereafter, the complainant had presented the cheque with its banker namely State Bank of India, Mayapuri, New Delhi for encashment on the same day, but to the utter shock and surprise, the cheque in question had got dishonoured vide returning memo dtd. 19/5/2018 for the reasons 'Funds Insufficient'. As alleged, the complainant company had made repeated demands to the accused persons to clear the dues, however, they had failed to do so. Thereafter, the statutory legal demand notice dtd. 1/6/2018 was served upon the accused persons, but despite the service of notice, they had failed to make the payment. Accordingly, the complainant company had filed the present complaint under Sec. 138/141 of NI Act against the accused company and its director and additional director/signatory.

(3.) Learned counsel for the petitioners argues that as per the case of complainant, the cheque in question had been issued on 18/5/2018 and had got dishonoured on 19/5/2018, however, on the date of alleged dishonour i.e. 19/5/2018, some unknown persons had forged the signatures of Ramji Sharma and had perpetrated a fraud on the company by effectuating certain RTGS transactions due to which the balance of the company's account had reduced and the cheque in question had got dishonoured. It is stated that in this regard, a complaint had also been filed with the police and subsequently upon filing an application under Sec. 156(3) Cr.P.C., an FIR had also got registered on 6/6/2019. It is stated that at the time of commission of offence, the petitioners were not in-charge of or responsible for the affairs of the accused company since the National Company Law Tribunal had allowed an application under Sec. 7 of Insolvency Bankruptcy Code, 2016, vide order dtd. 8/6/2018, after which the petitioners had no control over the affairs of the company and the powers of the board of directors had got vested with the interim resolution professional. It is stated that though the cheque had got dishonoured prior to the company going into CIRP, it is stated that the offence under Sec. 138 of NI Act gets completed only after completion of 15 days from service of legal notice and failure to male payment, which had got completed a week after the accused company going into CIRP. It is argued that as per the judgment of Hon'ble Apex Court in P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd. (2021) 6 SCC 258, the word 'proceeding' under Sec. 14(1)(a) of IBC, 2016 would cover a prosecution under Sec. 138 of NI Act and thus, present proceedings ought not to be continued. It is also stated that since an FIR had been registered on the complaint of petitioners qua fraud that had happened with the accused company on the date of dishonour of cheque, the learned Trial Court ought to have followed the provision of Sec. 210 of Cr.P.C. which mandates that when there is a complaint case and police investigation in respect of the same offence pending, the proceedings in complaint case should be stayed. Therefore, it is argued that the present petitions be allowed and the complaint case be quashed.