1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.855 OF 2008 IN COMPANY PETITION NO.798 OF 1999 In the matter of Section 446 of the Companies Act, 1956; And In the matter of leve to continue prosecution against Vitara Chemicals Ltd., which is wound up by an Order dated 24.08.2007. Haren Thanawala .. Applicant V/s The Official Liquidator, High Court, Mumbai being liquidator of Vitara Chemicals Ltd. .. Respondent Mr.Brijesh Upadhyay i/by Purmanand & Co for applicant. Mr.S.Ramakanta, Dy. O.L. present. CORAM : S.C.DHARMADHIKARI, J. DATE : 26th June 2008 P.C. . In this Company Application the applicant who is the original-petitioner has filed Criminal 2 Complaint No.3850/S/2002 in the 23rd Metropolitan Magistrate, Esplanade Court, Mumbai at Mumbai invoking the provisions of Negotiable Instruments Act, 1881 and more particularly section 138. 2. It is contended that although the company is arrayed, complaint essentially is invoking the jurisdiction of the Metropolitan Magistrate under section 141 of the Negotiable Instruments Act, 1881. It is contended that in the light of the fact that company has gone into liquidation and the O.L. has been appointed, Metropolitan Magistrate is insisting on leave under section 446 of the Companies Act so as to continue the proceedings before him. 3. The learned advocate invited my attention to a judgment of this Court dated 13th February, 2007 in Criminal Revision Application No.245 of 1997 taking a view that leave under section 446 of the Companies Act is necessary to continue the proceedings under section 138 of the Negotiable Instruments Act, 1881. 3 4. Upon a query from the Court he submits that the complaint has been filed alleging dishonour of cheque which has been drawn by the company and presented by the complainant but dishonoured and after taking all steps as are set out in section 138 the complaint is filed. He submits that section 141 of the Negotiable Instruments Act, 1881 is clear. However, the proceedings have been initiated when the company was not winding up. Hence, an application is made so that formally this Court should grant leave and the proceedings before the Metropolitan Magistrate can continue. 5. He makes a statement that grant of leave by this Court would not be construed as the O.L. stepping in as an accused in the complaint or that the O.L. be called upon to answer the charge or summoned by the Court in the proceedings. He submits that appropriate clarifications be issued and then the application for leave be granted. 4 6. Having perused the provisions of the Negotiable Instruments Act, 1881 and more particularly sections 138 to 147 thereof so also the view taken by this Court, in my view, interest of justice would be subserved if it is directed that the complaint insituted by the petitioner-applicant can proceed and even if the company has been directed to be wound up and the O.L. appointed, all that would be required is a formal amendment to the complaint incorporating the details with regard to winding up. Merely because the winding up proceedings would be referred to so also appointment of liquidator therein it does not mean that the amendment in that behalf can be construed as the O.L. be added as an accused in complaint and be required to answer the charge. Ultimately, the consequences in such proceedings are serious. Even if the offence may be compoundable, ultimately, it is an offence. The nature of the proceedings being such whether the liquidator can be added or not is something which requires 5 deeper scrutiny. Hence, without expressing any opinion on the view taken by this Court and in facts peculiar to this case, so also on account of statement made by the learned advocate that leave under section 446 is granted to continue the criminal complaint, subject to above clarification application is disposed of. (S.C.Dharmadhikari, J)