K P FRANCIS Vs. FAIR KURIES PVT LTD

JUDGEMENT

(1.) The question arises for consideration in this Crl. M.C is as to whether a complaint under section 138 of the Negotiable Instruments Act (in short, 'the N.I. Act') can be filed against the company or its Directors including the Managing Director when the cause of action arises after the winding up of the company pursuant to the order passed by the court.

(2.) The former Managing Director and former Directors of Kshemanidhi Kuries and Loans Private Limited have approached this court to get them extricated from the clutches of prosecution proceedings pitted against them, consequent to the non-payment of the amount covered by the cheques issued by the said company. The contention of the petitioners is that the cause of action in Annexure-A1 complaint arose after passing the order of winding up of the company by the court.

(3.) The company involved in this Crl. M.C. will be referred to as "the company". The cheque leaf issued by the company is dated 30.01.2010 and the amount covered by the cheque is Rupees seven lakh. When the said cheque was presented for encasement, the said cheque was dishonoured by the bank on 2.2.2010. The payee of the cheque issued notice to the company on 2.2010 calling upon the company to pay the amount. The company received the notice on 12.02010. As the company failed to pay the amount, Annexure-A1 complaint was filed before the Court of the Chief Judicial Magistrate, Thrissur on 27.2010 against the company and its directors for the offence under section 138 of the N.I. Act. The learned Magistrate took cognizance of the offence and issued process against the petitioners, who are the accused persons in the above case. It was then that the petitioners challenged the criminal proceeding by means of the above Crl. M.C. contending that before arising the cause of action for filing the complaint, the company was wound up as per the order of the court.