The Negotiable Instruments Act, 1881 regulates negotiable instruments, which are signed written documents used for making monetary transactions such as promissory notes, cheques, and bills of exchange in India. The Act defines the various types of negotiable instruments, provides provisions regarding their use, the rights of parties involved in a transaction and also penal provisions for defaulters of any duties.
The Negotiable Instruments Act (hereinafter NI Act) is Act dealing with civil subjects, but also imposing penal sanctions on defaulters and hence, it has often been ruled that civil proceedings for recovery of money shall be no bar for the continuance of proceedings of the NI Act owing to its quasi-criminal nature. For example, in BSI Ltd. and Ors. v Gift Holdings Pvt. Ltd. and Ors.[1], it was held that if an offence under the Negotiable Instruments Act was committed before a company was declared as a sick company under the Sick Industrial Companies (Special Provisions) Act, 1985, then the offences under the NI Act will not be stayed since they are quasi-criminal in nature. This was also reiterated in Kusum Ingots & Alloys Ltd. and Ors. v Pennar Peterson Securities Ltd. and Ors.[2]
In Kaushalya Devi Massand v Roopkishore Khore[3], the Supreme Court stated that an offence under Section 138 of the Act which deals with dishonour of cheques is in nature a civil wrong with criminal overtones. This may be substantiated by the fact that the crimes under the Act are punishable by imprisonment and not mere civil damages.
However, reference must be made to the Insolvency and Bankruptcy Code, 2016 wherein Sections 14 and 15 describe what is termed as a ‘moratorium’ period during which the institution of any fresh suits against a corporate debtor is said to be prohibited while subsisting proceedings shall be stayed. This moratorium period, though not specifically defined within the Code, shall begin upon the initiation of the Corporate Insolvency Resolution Process (CIRP) which is a recovery mechanism for corporate entities which become insolvent.
The Apex Court in Swiss Ribbons Pvt. Ltd. and Anr. case[4] as necessary to preserve the corporate debtor’s assets during the Corporate Insolvency Resolution Process so that they do not face further dilution and so that the CIRP shall be completed efficiently, in furtherance of the interests of the creditors.
Hence, in Alchemist Asset Reconstruction Company Ltd. v Hotel Gaudavan Pvt. Ltd and Ors.[5], wherein the Respondent appointed an Arbitrator and tried to initiate arbitration proceedings even when moratorium had been declared by the NCLT, New Delhi, the Apex Court reiterated that the arbitration proceedings (which the Court inferred were motivated to hinder the insolvency proceedings) shall be stayed and the moratorium is non est in law.
In Anand Rao Korada v Varsha Fabrics (P) Ltd. and Ors[6]., the Supreme Court held that an Order passed by the Odisha High Court to proceed with the auction of the property of the Corporate Debtor was against the interests of the stakeholders since moratorium has been declared by the NCLT when said order was passed.
Similarly, in Indian Overseas Bank v RCM Infrastructure Ltd. and Ors., the Apex Court also held that the IBC’s moratorium period and barring of other laws shall have an overriding effect over any and every subsisting law while dealing with proceedings related to the SARFAESI Act.
However, these cases which stipulate that the IBC shall apply to all laws clearly poses a confusion with the NI Act, which is said to not be barred by civil disputes since provisions such as Section 138 of the NI Act blurs the distinction between civil and criminal jurisdictions[7] and are said to be quasi-criminal[8] in nature.
It has been argued that the IBC Code shall not apply to criminal or quasi-criminal matters and hence the provisions under NI Act cannot be stayed or barred while insolvency proceedings are initiated against a corporate debtor. This line of argument was discussed and the issue resolved in P. Mohanraj and Ors. v Shah Brothers Ispat Pvt. Ltd.[9].
In this case, the cheques issued in favour of the Respondent were dishonoured as under Section 138, NI Act due to insufficient funds. However, when proceedings were initiated- simultaneously, insolvency proceedings began against the Respondent herein and a moratorium period was declared. The NCLAT held that parallel proceedings under the NI Act would be subject to the moratorium process and hence the proceedings shall be stayed.
The Supreme Court delved into the object of the NI Act and the IBC and while taking note of the quasi-criminal nature of the NI Act stipulated that the period of moratorium shall lie against proceedings of the NI Act as well, irrespective of whether it is of quasi-criminal nature or not. Section 14 of the NI Act dealing with the moratorium process referred to ‘any judgement, decree, or order’ which includes criminal cases under the Code of Criminal Procedure and hence, to facilitate the object behind Section 14 and protect the assets of the corporate debtor, it was held that the IBC would continue to override all other laws.
Since the passing of this case, the Supreme Court has quashed proceedings under the NI Act while the moratorium period was continuing in Nag Leathers Pvt. Ltd. v Dynamic Marketing Partnership and Ors.[10] It has also been clarified in these two cases that the barring of proceedings under the NI Act shall only lie against the corporate debtor as an entity, and not for the natural persons constituting an insolvent company. Hence, in Best Zone Builder & Developers Pvt Ltd and Ors. v Veena Rani and Ors.[11], wherein the Petitioners were directed to deposit the money awarded by the Court for dishonoring of cheque under the NI Act, the Punjab and Haryana High Court reiterated that proceedings under the NI Act cannot be quashed against the natural persons such as the Managing Director and Director of a company, and hence and hence the moratorium period shall only apply to the corporate debtor.
Hence, now, cases such as Tayal Cotton Pvt. Ltd. v The State of Maharashtra and Ors.[12] which held that the moratorium period prohibiting the institution of proceedings under the IBC shall not apply to a criminal proceeding has been clarified and overruled.
[1] BSI Ltd. and Ors. v Gift Holdings Pvt. Ltd. and Ors., (2000) 2 SCC 737 [2] Kusum Ingots & Alloys Ltd. and Ors. v Pennar Peterson Securities Ltd. and Ors, AIR 2000 SC 954 [3] Kaushalya Devi Massand v Roopkishore Khore, (2011) 4 SCC 593 [4] Swiss Ribbons Pvt. Ltd. and Anr. v Union of India, AIR 2019 SC 739 [5] Alchemist Asset Reconstruction Company Ltd. v Hotel Gaudavan Pvt. Ltd and Ors., AIR 2017 SC 5124 [6] AIR 2020 SC 222 [7] Abbas Haji v TN Channakeshava (2019) 9 SCC 606 [8] R Vijayan v Baby (2012) 1 SCC 260 [9] P Mohanraj and Ors. v Shah Brothers Ispat Pvt. Ltd., AIR 2021 SC 1308 [10] Nag Leathers Pvt. Ltd. v Dynamic Marketing Partnership and Ors, (2022)2 SCC 271 [11] Best Zone Builder & Developers Pvt Ltd and Ors. v Veena Rani and Ors, 2022(2) RCR (Criminal) 279 [12] Tayal Cotton Pvt. Ltd. v The State of Maharashtra and Ors, 2018 (4) Bom CR (Cri) 795
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