IN THE MATTER OF COMPANIES ACT AND IN THE MATTER OF KALPETTA JANAKSHEMA MARUTHI CHITS PVT.LTD. Vs. STATE

JUDGEMENT

(1.) The present report has been filed by the official liquidator in respect of the company which has been ordered to be wound up as per order of this Court dtd. 4/2/2019 in CP No. 43 of 2015. It is submitted that multiple criminal cases under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "NI Act"), are presently pending before the Chief Judicial Magistrate Court, Kalpetta, against the company. By official memorandum dtd. 25/3/2025 of the Chief Judicial Magistrate Court, Kalpetta, the company under liquidation was directed to obtain leave of the Tribunal under Sec. 279 of the Companies Act, 2013 (hereinafter referred to as "Act 2013"), to proceed with the case. In the report, permission is sought to permit the Official Liquidator to proceed with criminal complaint pending under Sec. 138 of the NI Act, before the Chief Judicial Magistrate Court, Kalpetta as S.T.Nos.370 of 2016, 380 of 2016, 46 of 2022, 165 of 2022, 175 of 2022 and 68 of 2023 without the necessity of obtaining leave from NCLT.

(2.) The company was wound up and orders were passed as per the provisions of the Companies Act, 1956 and is still under the jurisdiction of this Court and in view of Sec. 434 of the Companies Act, 2013 and the Companies (Transfer of Pending Proceedings) Rules, 2016, the matter has not been transferred to NCLT and hence the proceedings still remain before this Court. The Chief Judicial Magistrate Court, Kalpetta, has directed the company under liquidation to obtain leave of the Tribunal under Sec. 279 of the Companies Act, 2013, so as to proceed with the case. Since the company has been wound up as per the provisions of the Companies Act, 1956 and the matter is pending before this Court and not before the Tribunal, the provisions of the Companies Act, 1956 will apply in the present case and Sec. 446 of the Companies Act, 1956 which is the corresponding Sec. to Sec. 279 of the Companies Act, 2013 for obtaining leave will have no application in the present case.

(3.) The further issue to be resolved is as to whether leave of the Court is to be obtained for proceeding with a complaint filed under Sec. 138 of the NI Act, 1881. This Court in Jose Antony v. Official Liquidator, 1998 (2) KLT 176, has held that only those criminal proceedings which relate to the assets of the company will come within the ambit of legal proceedings contemplated under Sec. 446 of the Companies Act, 1956. Paragraphs 8, 9, 10 and 11 of the said judgment read as follows: