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Sanjeev Kuchhal (Publishers)     13 August 2011

Query on negotiable instruments act

Company A merged with Company B. After merger whether company B can be prosecuted for dishonour of cheque issued by company A.



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 17 Replies

pervez (adviser)     13 August 2011

I trust merger is under Sec. 391 of Companies Act... see the terms of settlement/ merger having been filed with High Court and the consent order passed by High Court... Generally, all the assets and liabilities are transferred to the transferee company including actionable claims.... In nutshell, the answere is 'Yes' ...

Sanjeev Kuchhal (Publishers)     13 August 2011

Thankyou sir. I would be greatful if supporting citations may be provided

prasanta kumar parida (sr. consultant)     14 August 2011

IF THE ASSET AND LIABILITY OF COMPANY A IS MERGED WITH COMPANY B THEN THE COMPLAINT CASE UNDER SECTION 138 N.I. ACT CAN BE FILED AGAINST COMPANY B FOR THE DISHONOURED CHEQUE OF COMPANY A(SBJECT TO CONDITION THAT, ALL THE FORMALITIES OF SECTION 138 IS FULFILLED.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     15 August 2011

Yes but the cheque should have been issued after merger with new identity.

prasanta kumar parida (sr. consultant)     15 August 2011

it is not necessary that, cheque must be issued after merger of 2 companies.

prasanta kumar parida (sr. consultant)     16 August 2011

on merger of the companies, the assets &liability is also merged.so there is no problem to prove the legally enforceable debt&liability of the merged company.

DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     17 August 2011

Than it will be liabilty against self.

Ashwin Kumar Ballari (PVT)     17 August 2011

Hi Sanjeev,

Company B should  be  prosecuted  for dishonor  of cheques. Because  When  Company  A  has  issued  the  cheque during its  existence  and afterwards  mergers has taken place  during course of merger all book of accounts got  merged with  company  B including the liabilities of A company and  mean time  Company A  has to issue the list of cheques numbers with amount to their  bankers to be honored  in old company name  or  Company B can issue fresh cheques in Lieu of  old  cheque of Company A.

Hope this  info helps you .

Thanks,

Ashwin

Sanjeev Kuchhal (Publishers)     19 August 2011

Thanks a lot for the answers to the query. Recency I got a judgment of Delhi High Court. According to that judgments criminal prosecution against company B will not be possible though Civil liability may be there. Para 19 of the said judgment says :

"The legal position which emerges from afore-noted judicial decisions is that upon an amalgamation between two companies, the transferor company dies a civil death and the entity which has evolved upon amalgamation cannot be prosecuted for an offence committed by the transferor company. To the same effect are the observations of the High Court of Himachal Pradesh in the unreported decision in Crl. Rev. No. 150/1994 M/s. Brooke Bond Lipton (India) Ltd. & Anr. Vs. State of H.P. & Anr. decided on 24.3.1995."

The said judgment of Delhi High Court is attached herewith.

I would like to the members to comment on the law point.


Attached File : 19837 203353 47 nicholas piramal vs s sundaranayagam 1 .pdf downloaded: 91 times

THANKACHAN V P (Advocate & Notary)     20 August 2011

 

Civil action is possible but criminal prosecution is not possible as if penal action cannot be lauched against the legal heirs of a person who committed an offence. 

 

ajay (ne)     22 August 2011

dear sir,

i maid a case againts a person u/s 138 at gujrat court. after 10 years same person not attend b4 d court.. court issued arrest warrent many time.. but rajasthan police not arresting him.. i have evidance d same person is resding at d same palace of warrent.rajasthan police doing all dis with mutual setting.

can court make him wanted? 

 

sir in the same what shold i do?

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DEFENSE ADVOCATE.-firmaction@g (POWER OF DEFENSE IS IMMENSE )     22 August 2011

Not easy task.

ajay (ne)     22 August 2011

sir,

 

what to do????

VIMAL KUMAR SURANA (PROP)     09 September 2011

cheque given for security purpose the same were prasented by party to bank and bounced and claim u/s 138 whether maintanable (purpose of security till the complain resolved by the authority against me than party can deposit the cheque but the complain made by party the authority decided against  the party and his duty to return back the cheque to me but intensionaly deposited and bounced as my liability was over when complain matter decided in favour of me) please reply with case law


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