Mak Ampoules Pvt. Ltd. v. Elder Pharmaceuticals Ltd And ANR

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.195 OF 2018 IN COMPANY PETITION NO.136 OF 2015 MAK Ampoules Private Limited ....Applicant/Petitioner Vs.

Elder Pharmaceuticals Limited & Anr.

....Respondents ---- Mr. R.D. Soni i/b. Ram and Company for applicant. Ms. Akanksha Patil i/b. Narayanan and Narayanan for original petitioner. Mr. Mahendhar Aithe, Company Prosecutor for Official Liquidator present. ---- CORAM : K.R.SHRIRAM, J.

DATE : 13th JUNE, 2018 P.C.:

This application is for leave under Section 446 of the Companies Act, 1956 to continue to prosecute a criminal case no.972/SS of 2016 pending in the Court of learned Metropolitan Magistrate, 23rd Court at Esplanade, Mumbai under Section 138 of the Negotiable Instrument Act, 1881.

After the application was heard, Mr. Soni, counsel for applicant brought to the notice of this Court judgment of the Division Bench of this Court in Indorama Synthetics (I) Limited V/s. State of Maharashtra1. In view of this judgment of the Division Bench of this Court, where it has been held that the expression 'suit or legal proceedings', used in Section 446 (1) of the Companies Act, can mean only those proceedings

1. MHLJ-2016-4-249 Gauri Gaekwad

2/2 903.CA-195-2018.doc which can have a bearing on the assets of the companies in winding-up or have some relation with the issue in winding-up and will not extend to criminal offences where the Director of the company is liable for penal action and proceedings under Section 138 of Negotiable Instrument Act, which are in the nature of a criminal complaint and not directly against the assets of the company, cannot be included in the terms "suit or other legal proceedings" as used in Section 446 (1) of the Companies Act", this application does not survive.

Application accordingly stands disposed.

(K.R. SHRIRAM, J.) Gauri Gaekwad