Sandeep Mehta, J. - (1.) HEARD learned counsel for the parties. All these misc. petitions are being decided by this common order as they involve a common question of facts and law.
(2.) THESE misc. petitions have been preferred by the petitioners seeking quashing of the proceedings initiated against them for various offences including offences under Sections 120B, 420 and 409 IPC and Section 138 of the Negotiable Instruments Act in the respective cases pending against them in the Court of Additional Chief Judicial Magistrate, Sojat. Briefly stated the facts of the case are that the petitioners were the erstwhile directors of a finance company named Gurushikhar Savings and Finance India Ltd. which was registered under the Companies Act. It is claimed that owing to the financial crunch faced by the company, the company fell short of funds and entered into financial crisis and accordingly, the petitioners filed an application for winding up of the company being Company Petition No. 9/98 (Satyadeo Sharma & Anr. vs. Gurushikhar Savings and Finance Ltd.) on 9.3.1998 so that the assets of the company may be realised and applied for payment of its debts to its creditors. It is further submitted that initially a provisional liquidator was appointed in the aforesaid company petition on 22.11.2002 and ultimately, the said winding up petition has been allowed vide order dated 16.12.2008 whereby this Court has directed to wind up the company and the Official Liquidator has been directed to proceed with the matter to administer the properties of the company for the benefits of its creditors and members by due process of law. It is claimed that certain creditors for the objective of gaining personal benefits and profits filed various complaints against the petitioners for the offences under Sections 120B, 420 and 409 IPC along with Section 138 of the N.I. Act with the allegations that the petitioners had induced and received huge amounts from various members of public including the complainants as investments and thereafter, when the creditors/complainants requested for refund, the petitioners refused to accede to the demand of the creditors and thereby cheating and defrauding these persons. It is also the case of the complainants that the cheques given for the refunds were also dishonoured and thus the petitioners committed the offences of cheating etc. It is stated that the complaints have been registered in the Court of A.C.J.M., Sojat under different numbers and the proceedings of these complaints are under challenge in the above mentioned misc. petitions filed before this court.
(3.) THE petitioners have approached this Court seeking quashing of the criminal proceedings initiated against them in the Court of A.C.J.M., Sojat on the strength of the provisions contained in Section 446(1) of the Companies Act, 1956 (referred to herein after as 'the Act of 1956'). Counsel for the petitioners stressing upon the provision submits that the mandate of the provision under Section 446(1) of the Act of 1956 is that once a winding up order has been made or the Official Liquidator has been appointed as the Provisional Liquidator, then no suit or other legal proceedings can be commenced or if they are pending at the date of winding up of order, they cannot be proceeded with except by the leave of the Tribunal and subject to such terms as the Tribunal may impose. It is submitted that once the winding up order has been passed, then only the Company Tribunal has jurisdiction to entertain or dispose of any suit or legal proceedings by or against the company or any claim made by or against the company. Thus, it is submitted that the proceedings being without jurisdiction should be quashed. Learned counsel for the petitioners has placed reliance on the decisions of (1) Saurabh N. Soparkar. Vs. Official Liquidator of Renco Gears Ltd. reported in, (1998) 5 Comp. LJ 99 (Guj) (Regular) and (2) Steel Authority of India Limited Vs. O.L. of Gujarat Steel Tubes Ltd. reported in : 2005 Law Suit (Guj) 607 in support of his contention.;