Rajneesh Nagar and another v. State of U.P. and another wherein the following order passed

4. Learned counsel for the applicants has also reliance upon an interim order dated 21.9.2024 passed in Application U/S 482 No.20742 of 2024, Rajneesh Nagar and another vs. State of U.P. and another wherein the following order passed:-

1. Supplementary affidavit filed today on behalf of learned counsel for the applicants is taken on record.

2. Heard Sri Mohit Singh, learned counsel for the applicants and Sri Pankaj Srivastava, learned A.G.A. for the State.

3. The instant application under Section 482 Cr.P.C. was filed seeking quashing both the summoning orders dated 13.02.2024 as well as also quash the entire proceedings of Complaint Cases No. 17301 of 2023 and 13 of 2024 (M/s GRV Ventures Private Limited Vs. M/s Bulland Realtors Private Limited and others) under Section 138 Negotiable Instruments Act, 1881, P.S.- Sector 20, District- Gautam Budh Nagar, pending in the Court of learned Additional Chief Judicial Magistrate- II, Gautam Budh Nagar, Uttar Pradesh.

4. Learned counsel for the applicants submits that the opposite party no. 2 is the company, who had made some investment in the company named M/s Bulland Realtors Private Limited of which the applicants herein are the Directors. After some dispute arose between the parties F.I.R. was lodged by the opposite party no. 2 against the M/s Bulland Realtors Private Limited as also against the applicants herein alongwith one more director Anil Mithas. In connection of the said F.I.R. applicants herein were arrested and were in jail. Subsequent thereto, a settlement had arrived at between the said M/s Bulland Realtors Private Limited and the opposite party no. 2 herein and in connection with the said settlement, 39 cheques of different denominations were issued in discharge of the liability of the company i.e. M/s Bulland Realtors Private Limited. In the instant complaint cases out of the said 39 cheques issued by the applicants as the Directors of the company, six cheques of Rs. 50 lakhs each are involved. The cheques in question in the instant complaint cases were presented for encashment. The first three cheques were presented on

18.08.2023 for encashment, which were dishonored on 19.08.2023, the other set of three cheques were presented for encashment on

21.11.2023 and were dishonored on 22.11.2023 and subsequent thereto the legal demand notices were issued by the opposite party no. 2 against the company and its Directors on 18.09.2023 and

05.12.2023 respectively and when the demand notice was not complied with, the Complaint Case No. 1730 of 2023 was filed on

20.10.2023 and the Complaint Case No. 13 of 2024 was filed on

09.01.2024.

5. Learned counsel for the applicants further submits that with regard to the other cheques out of the said 39 cheques the first complaint was filed by the opposite party no. 2 on 28.09.2022 for an amount of Rs. 10 lakhs being the Complaint Case No. 2063 of 2022 filed in the court of Chief Metropolitan Magistrate, Karkardooma, Delhi. Therefore, the learned counsel for the applicants submits that the instant complaint cases, which have been filed at Gautam Budh Nagar subsequently by the opposite party no. 2 are in violation of provisions of Section 142(A) sub-section 2, which categorically mandates that, if with regard to the same transaction a complaint case under Section 142 has been filed earlier, the subsequent complaint cases are required to be filed in the same court. Since, the earliest complaint with regard to the same transaction was filed by the opposite party no. 2 at Karkardooma courts. These complaints which have been filed in Gautam Budh Nagar are without jurisdiction and could not have been entertained by the court at Gautam Budh Nagar.

6. Learned counsel for the applicants further relied upon the judgment of the Apex Court in Damordar S. Prabhu Vs. Sayed Babalal H., (2010) 5 SCC 663., which reads as under: "23. We are also in agreement with the learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an instalment basis to be repaid in equated monthly instalments, several cheques are taken which are dated for each monthly instalment and upon the dishonour of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively."

7. In the aforesaid judgment the Apex Court has categorically held that it is the duty of the complainant to disclose if any other complaint case with regard to the same transaction has been filed by the complainant before which court. Had it been disclosed by the complainant in the instant complaint cases, the trial court would not have summoned the applicants herein as he becomes the functous officio in the instant complaint cases for the lack of jurisdiction because a bar created under Section 142(A) sub-section 2.

8. Learned counsel for the applicants has further submitted that in the instant case at the behest of Nimble Credit Cooperative Society Limited the proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 were initiated against the M/s Bulland Realtors Private Limited i.e. company of which the applicants are the Directors and by order dated 31.07.2023 the insolvency resolution profession has already been appointed by the National Company Law Tribunal, therefore, relying upon the Section 14 of the Insolvency and Bankruptcy Code, learned counsel for the applicants submits that the proceedings u/s 138 of the N.I. Act on the basis of presentation of cheque subsequent to the appointment of insolvency and resolution professional are not maintainable as by appointment of the insolvency and resolution professional, the Directors of the company are no more the incharge of the company and the incharge of the company becomes the Insolvency Resolution Professional (IRP) from the date of his appointment, therefore, any subsequent act of dishonor of cheque would not attract any liability against the Ex-directors of the company as they are no more incharge of the company. In view of Section 141 only the persons, who are incharge of the company on the date of presentation of the cheque are responsible for the offence under section 138 read with Section 141 of the Negotiable Instruments Act, in view thereof matter requires consideration.

9. Issue notice to the opposite party No. 2.

10. Learned A.G.A. accepts notice on behalf of the State.

11. Opposite parties shall file counter affidavit within a period of four weeks.

12. Applicants shall have two weeks' thereafter to file rejoinder affidavit.

13. Put up on 03.12.2024 in additional cause list before the appropriate Bench.

14.Till the next date of listing, no coercive action shall be taken against the applicants herein in Complaint Cases No. 17301 of 2023 and 13 of 2024 (M/s GRV Ventures Private Limited Vs. M/s Bulland Realtors Private Limited and others) under Section 138 Negotiable Instruments Act, 1881, P.S.- Sector 20, District- Gautam Budh Nagar, pending in the Court of learned Additional Chief Judicial Magistrate- II, Gautam Budh Nagar, Uttar Pradesh."

5. Matter requires consideration.

6. Issue notice to respondent no. 2.

7. Counter affidavit be filed within six weeks thereafter rejoinder affidavit be filed within two weeks..

8. Tag the present application along with records of Application U/S 482 No.20742 of 2024, Rajneesh Nagar and another vs. State of U.P. and another on the date fixed.

9. When the matter is next listed the counsel for the parties and the details of the case be printed in the cause list.

10. Till the next date of listing, further proceedings of Complaint Case No.156/2023 [originally registered as Complaint Case No.9974 of 2023] and Complaint Case No. 123 of 2023 [originally registered as Complaint Case No. 10373 of 2023] (M/s GRV Ventures Private Limited versus M/s Bulland Realtors Private Limited and others), u/s 138 Negotiable Instruments Act, 1881, P.S- Sector 20, District- Gautam Buddha Nagar, pending in the court of Presiding Officer Special Court (138 N.I. Act), Gautam Buddha Nagar and also to quash both the summoning orders dated

27.07.2023 passed by the court of Additional Civil Judge (J.D)-3, J.M, Gautam Buddha Nagar in the aforesaid cases, in so far as it pertains to the applicants shall remain stayed. Order Date :- 12.5.2025 piyush

4. Learned counsel for the applicants has also reliance upon an interim order dated 21.9.2024 passed in Application U/S 482 No.20742 of 2024, Rajneesh Nagar and another vs. State of U.P. and another wherein the following order passed:-

1. Supplementary affidavit filed today on behalf of learned counsel for the applicants is taken on record.

2. Heard Sri Mohit Singh, learned counsel for the applicants and Sri Pankaj Srivastava, learned A.G.A. for the State.

3. The instant application under Section 482 Cr.P.C. was filed seeking quashing both the summoning orders dated 13.02.2024 as well as also quash the entire proceedings of Complaint Cases No. 17301 of 2023 and 13 of 2024 (M/s GRV Ventures Private Limited Vs. M/s Bulland Realtors Private Limited and others) under Section 138 Negotiable Instruments Act, 1881, P.S.- Sector 20, District- Gautam Budh Nagar, pending in the Court of learned Additional Chief Judicial Magistrate- II, Gautam Budh Nagar, Uttar Pradesh.

4. Learned counsel for the applicants submits that the opposite party no. 2 is the company, who had made some investment in the company named M/s Bulland Realtors Private Limited of which the applicants herein are the Directors. After some dispute arose between the parties F.I.R. was lodged by the opposite party no. 2 against the M/s Bulland Realtors Private Limited as also against the applicants herein alongwith one more director Anil Mithas. In connection of the said F.I.R. applicants herein were arrested and were in jail. Subsequent thereto, a settlement had arrived at between the said M/s Bulland Realtors Private Limited and the opposite party no. 2 herein and in connection with the said settlement, 39 cheques of different denominations were issued in discharge of the liability of the company i.e. M/s Bulland Realtors Private Limited. In the instant complaint cases out of the said 39 cheques issued by the applicants as the Directors of the company, six cheques of Rs. 50 lakhs each are involved. The cheques in question in the instant complaint cases were presented for encashment. The first three cheques were presented on

18.08.2023 for encashment, which were dishonored on 19.08.2023, the other set of three cheques were presented for encashment on

21.11.2023 and were dishonored on 22.11.2023 and subsequent thereto the legal demand notices were issued by the opposite party no. 2 against the company and its Directors on 18.09.2023 and

05.12.2023 respectively and when the demand notice was not complied with, the Complaint Case No. 1730 of 2023 was filed on

20.10.2023 and the Complaint Case No. 13 of 2024 was filed on

09.01.2024.

5. Learned counsel for the applicants further submits that with regard to the other cheques out of the said 39 cheques the first complaint was filed by the opposite party no. 2 on 28.09.2022 for an amount of Rs. 10 lakhs being the Complaint Case No. 2063 of 2022 filed in the court of Chief Metropolitan Magistrate, Karkardooma, Delhi. Therefore, the learned counsel for the applicants submits that the instant complaint cases, which have been filed at Gautam Budh Nagar subsequently by the opposite party no. 2 are in violation of provisions of Section 142(A) sub-section 2, which categorically mandates that, if with regard to the same transaction a complaint case under Section 142 has been filed earlier, the subsequent complaint cases are required to be filed in the same court. Since, the earliest complaint with regard to the same transaction was filed by the opposite party no. 2 at Karkardooma courts. These complaints which have been filed in Gautam Budh Nagar are without jurisdiction and could not have been entertained by the court at Gautam Budh Nagar.

6. Learned counsel for the applicants further relied upon the judgment of the Apex Court in Damordar S. Prabhu Vs. Sayed Babalal H., (2010) 5 SCC 663., which reads as under: "23. We are also in agreement with the learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the cheque. For instance, in the same transaction pertaining to a loan taken on an instalment basis to be repaid in equated monthly instalments, several cheques are taken which are dated for each monthly instalment and upon the dishonour of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively."

7. In the aforesaid judgment the Apex Court has categorically held that it is the duty of the complainant to disclose if any other complaint case with regard to the same transaction has been filed by the complainant before which court. Had it been disclosed by the complainant in the instant complaint cases, the trial court would not have summoned the applicants herein as he becomes the functous officio in the instant complaint cases for the lack of jurisdiction because a bar created under Section 142(A) sub-section 2.

8. Learned counsel for the applicants has further submitted that in the instant case at the behest of Nimble Credit Cooperative Society Limited the proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 were initiated against the M/s Bulland Realtors Private Limited i.e. company of which the applicants are the Directors and by order dated 31.07.2023 the insolvency resolution profession has already been appointed by the National Company Law Tribunal, therefore, relying upon the Section 14 of the Insolvency and Bankruptcy Code, learned counsel for the applicants submits that the proceedings u/s 138 of the N.I. Act on the basis of presentation of cheque subsequent to the appointment of insolvency and resolution professional are not maintainable as by appointment of the insolvency and resolution professional, the Directors of the company are no more the incharge of the company and the incharge of the company becomes the Insolvency Resolution Professional (IRP) from the date of his appointment, therefore, any subsequent act of dishonor of cheque would not attract any liability against the Ex-directors of the company as they are no more incharge of the company. In view of Section 141 only the persons, who are incharge of the company on the date of presentation of the cheque are responsible for the offence under section 138 read with Section 141 of the Negotiable Instruments Act, in view thereof matter requires consideration.

9. Issue notice to the opposite party No. 2.

10. Learned A.G.A. accepts notice on behalf of the State.

11. Opposite parties shall file counter affidavit within a period of four weeks.

12. Applicants shall have two weeks' thereafter to file rejoinder affidavit.

13. Put up on 03.12.2024 in additional cause list before the appropriate Bench.

14.Till the next date of listing, no coercive action shall be taken against the applicants herein in Complaint Cases No. 17301 of 2023 and 13 of 2024 (M/s GRV Ventures Private Limited Vs. M/s Bulland Realtors Private Limited and others) under Section 138 Negotiable Instruments Act, 1881, P.S.- Sector 20, District- Gautam Budh Nagar, pending in the Court of learned Additional Chief Judicial Magistrate- II, Gautam Budh Nagar, Uttar Pradesh."

5. Matter requires consideration.

6. Issue notice to respondent no. 2.

7. Counter affidavit be filed within six weeks thereafter rejoinder affidavit be filed within two weeks..

8. Tag the present application along with records of Application U/S 482 No.20742 of 2024, Rajneesh Nagar and another vs. State of U.P. and another on the date fixed.

9. When the matter is next listed the counsel for the parties and the details of the case be printed in the cause list.

10. Till the next date of listing, further proceedings of Complaint Case No.156/2023 [originally registered as Complaint Case No.9974 of 2023] and Complaint Case No. 123 of 2023 [originally registered as Complaint Case No. 10373 of 2023] (M/s GRV Ventures Private Limited versus M/s Bulland Realtors Private Limited and others), u/s 138 Negotiable Instruments Act, 1881, P.S- Sector 20, District- Gautam Buddha Nagar, pending in the court of Presiding Officer Special Court (138 N.I. Act), Gautam Buddha Nagar and also to quash both the summoning orders dated

27.07.2023 passed by the court of Additional Civil Judge (J.D)-3, J.M, Gautam Buddha Nagar in the aforesaid cases, in so far as it pertains to the applicants shall remain stayed. Order Date :- 12.5.2025 piyush