BARANAGORE JUTE FACTORY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) MIDNAPORE Commercial company, the opposite party no. 2 herein filed a petition of complaint under Section 138 of the Negotiable Instruments Act against the Baranagore Jute Factory PLC (Pvt. Ltd. Company) as accused no. 1 and two others namely, Radheshyam Ajitsaria and Raj Kumar Nemani as accused no. 2 and accused no. 3 respectively on the allegation that the accused nos. 2 and 3 were looking after the day to day business of the accused company and were responsible for the conduct of the business of the said company and that the complainant company sold raw jute to the accused company and in discharge of the existing liability two cheques were issued in favour of the complainant company on 21st July, 1990 for Rs. 64,050/- and rs. 77,385/- respectively, butt the cheques on presentation were dishonoured by the drawee bank by returning the same for referring to the drawer thereby indicating that there was not sufficient fund in the bank account of the accused company to honour the said cheques issued in discharge of existing liability and that the cheques were dishonoured ultimately (again) on 10th November, 1990 and then notice was duly issued by the complainant to the accused demanding payment but the same having not been complied with the complainant filed the petition of complaint for procuring the accused persons under section 138 of the negotiable Instruments Act. The accused persons filed an application before the learned court below praying for staying further proceeding of the case, but the learned court below after hearing the parties rejected that application and thereafter the matter has come up before this court in revision.

(2.) IT is the case of the revisionist that this court on 28th October, 1987 passed an order for winding-up the accused Company in CP. No. 2 of 1987 and the Official Liquidator Hook over the possession of all assets and properties of the company. Subsequently on the 15th September. 1988 manjula Bose, J. passed an order appointing a Committee of Management to run and manage the Jute Mill Unit of the accused company and thereafter by an order dated the 30th November, 1988 the Supreme Court in Civil Appeal No. 4022 of 1988 sanctioned a scheme for running the said jute Mill by the Committee of Management appointed by the High Court and pursuant to the said order passed by the Supreme Court this court by an order dated the 16th June 1989 made a detailed scheme for mining of the said Jute Mill by the Committee of management in this background. Pradip Ghosh on behalf of the revisional argued two points mainly. The first point of his argument was that the prosecution on the basis of the complaint was not maintainable under section 446 of the Companies Act, 1956 as no leave of the court which was winding-up the company was taken for the prosecution as required under the said section. The second point argued by Mr. Ghosh was that the Committee of Management of the jute Mill having been appointed by the High Court for running the Mill during the pendency of the proceeding in the High Court its position was similar to the position of a Receiver appointed by court and therefore the members of the Committee of the Management were not liable to be prosecuted without the leave of the court appointing the committee.

(3.) LET us now take up the first point argued by Mr. Ghosh. It is the contention of the accused persons that the winding-up order in respect of the accused company was passed by the High Court on 28th October, 1987 and pursuant to the said order the Official Liquidator took over the possession of all assets and properties of the said company. It appears that raj Kumar Nemani who is the accused no. 3 moved an application before the High Court for an order staying the winding-up proceeding permanently and for constituting a Committee of Management with the persons mentioned in the scheme submitted by, him for revival of the company pending disposal of his application. Manjula Bose, J. in the order dated the 15th September, 1988 (vide, Annexure- D to the revisional application)primarily in the interest of the workers of the Mill and also in the interest of the unsecured creditors and for ensuring benefit for all considered it advisable to appoint an ad hoc Committee of Management for the purpose of immediate re-opening of the Mill as contemplated by the scheme admitted by said Nemani and accordingly appointed the Committee of management on an ad hoc basis by way a interim arrangement without the rights and contention of the parties and directed the said committee to make steps re-opening of the Jute Mill and run the same in terms of the scheme. At the same time by the same order, the learned judge also directed the Official Liquidator to take possession forthwith and remain in possession of the company and to complete the inventory which was yet to be completed as also of the finished goods and to take the assistance of a valuer from the panel of valuers of the High Court. The learned judge however, made it clear that the Committee of Management was appointed on an ad hoc basis and the said committee would have no power to charge or hypothecate any assets of the company. It was also made clear by the learned Judge that the Official Liquidator would have no power to charge or hypothecate any assets of the company. It was also made clear by the learned Judge that the Official Liquidator would continue in possession of the Mill but would not interfere with the management of the Mill by the ad hoc committee appointed by the court for the purpose of running the MID. By the same order the learned Judge also appointed one Mr. M. A. Latif. Advocate, a Special Officer for the purpose of calling a meeting of the unsecured creditors of the company and for placing before them the scheme under which the ad hoc Committee of management was appointed as well as a rival scheme which was also placed before the court. There are also some subsequent orders of the High court as well as of the Supreme. Court which are however not very material for our present purpose. From what has been stated above it appears that an order for winding-up the accused company was passed by the High court. During the continuance of the order the court appointed an ad hoc committee of management for re-opening and running the Mill for the benefit of the workers and the unsecured creditors. There was however no order staying the operation of the winding-up order or the proceeding. Tapan Kumar Dutta the learned Advocate appearing for the complainant opposite party however submitted that Section 446 of the Companies Act, 1956, in view of the facts and circumstances, is not attracted in this case inasmuch as the move taken by the court by appointing the ad hoc committee of Management as an interim arrangement for all practical purposes, was a move for revival or resuscitation of the company and not for winding-up the same and that being so section 446, considered in the spirit underlying the section, is not attracted here.