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Sudhir P   17 September 2023

Insolvency and cheque bounce case

Birgu infra had taken 10 lakhs for the sale of the property but one of the directors sahana issued a cheque and the cheque bounce happened.

We had filed a cheque bounce case with Respondent as Birgu represented by sahana and the company had filed for insolvency.

Query: is a cheque bounce applicable in cases where the company declares insolvency



Learning

 4 Replies

T. Kalaiselvan, Advocate (Advocate)     18 September 2023

In a landmark judgment by Surpreme court it held that there is no protection from personal liability provided to directors and key managerial personnel by the apex court through this decision. However, the narrow interpretation of the term “in charge of, and was responsible to, the company for the conduct of the business of the company”in section 141taken by the apex court in other landmark cases does provide a possible recourse. The Court in a plethora of judgments such as National Small Industries v. Harmeet Singh Paintal [(2010) 3 SCC 330] and Pooja Ravinder Devadasani v. State of Maharshtra [(2014) 16 SCC 1] has held that it is the responsibility of the complainant to make specific averments against accused directors to make them liable for an offence under section 138.

This conclusively settles the issue of whether proceedings under the NI Act against a corporate debtor will be stayed upon admission and commencement of CIRP. However, the Court allowed the proceedings under sections 138/141 to be continued against natural persons under section 141(1) and (2) as the bar under section 14 of the IBC shall only be operative upon the corporate debtors and not the natural persons in charge of the corporate debtor.

Sudhir P   18 September 2023

Thanks for your reply sir

directors sahana have no land and they took money and cheated us.

Can we file a police case and criminal case applicable to where the company declares insolvency

  

T. Kalaiselvan, Advocate (Advocate)     18 September 2023

If the borrower had obtained the loan on behalf of the company then you don't have any option than to file a cheque bnounce case against the company as well as the director who signed the cheque. The police will not entertain the matter since the borrower has already approached court for a relief. 

Besides the cheque bounce case can be filed in the criminal court 

Sudhir Kumar, Advocate (Advocate)     20 September 2023

I believe that Criminal case of cheating shall still subsists if the money was obtained from you without intention of selling any land.


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