Holding

A Section 138/141 proceeding against a corporate debtor is covered by the moratorium provision of Section 14(1)(a) of the IBC, but the moratorium does not extend to the natural persons liable under Section 141.

Summary

The appellant company failed to honour multiple cheques, leading the respondent to issue statutory notices under Sections 138 and 141 of the Negotiable Instruments Act and file criminal complaints. While the corporate debtor was placed under a moratorium under Section 14 of the Insolvency and Bankruptcy Code (IBC), the lower courts held that the cheque‑bouncing proceedings were not covered by the moratorium. The Supreme Court examined the scope of "proceedings" in Section 14(1)(a), the definition of "transaction" in Section 3(33), and the hybrid quasi‑criminal nature of Section 138 actions, rejecting the application of ejusdem generis and noscitur a sociis to narrow the provision. It held that a Section 138/141 proceeding against a corporate debtor falls within the moratorium, but the moratorium does not extend to natural persons such as directors, who remain liable. Consequently, the appeal was allowed, the earlier order set aside, and the cheque‑bouncing proceedings were allowed to continue against the company and its directors as the moratorium period had ended.

Issues considered

The scope of "proceedings" under Section 14(1)(a) of the IBC and whether it includes quasi‑criminal actions under Sections 138 and 141 of the Negotiable Instruments Act.
Whether the moratorium under Section 14 applies to natural persons (directors) as well as the corporate debtor.
The relevance of Sections 32A, 33, 96, 101 and other IBC provisions in interpreting the moratorium.
The applicability of statutory construction rules (ejusdem generis, noscitur a sociis) to Section 14.
The effect of the moratorium on pending and future Section 138/141 complaints.

Legislation cited

Arbitration and Conciliation Act, 1996s. 34
Code of Criminal Procedure, 1973s. 177-189, s. 421, s. 431, s. 62-64
Companies Act, 1956s. 630
Companies Act, 2013s. 2(60)
Insolvency and Bankruptcy Code, 2016s. 101(3), s. 14(1)(a), s. 14(3)(a), s. 14(3)(b), s. 14(4), s. 25(2)(b), s. 32A(1), s. 33(5), s. 35(1)(k), s. 96(3)
Negotiable Instruments Act, 1881s. 138, s. 139, s. 140, s. 141, s. 142, s. 143, s. 144, s. 145, s. 147, s. 148

Subjects

Insolvency and Bankruptcy CodeSection 14 moratoriumNegotiable Instruments ActSection 138 cheque bounceQuasi‑criminal proceedingStatutory interpretationDirectors liabilityEjuesdem generisNoscitur a sociis

Judgment

204 SUPREME COURT
[2021]REPORTS
14 S.C.R. 204 [2021] 14 S.C.R.

A P. MOHANRAJ & ORS.
v.
M/S. SHAH BROTHERS ISPAT PVT. LTD.
(Civil Appeal No. 10355 of 2018)
B MARCH 01, 2021
[ROHINTON FALI NARIMAN, NAVIN SINHA AND
K. M. JOSEPH, JJ.]
Insolvency and Bankruptcy Code, 2016 – s.14 – Negotiable
C Instrument Act, 1881 – Chapter XVII – ss.138, 141 – Institution/
continuation of proceeding u/s.138/141, NI Act, if covered by the
moratorium provision i.e. s.14, IBC – Natural persons if covered by
s.14 – Held: A s.138/141 proceeding against a corporate debtor is
covered by s.14(1)(a), IBC – A quasi-criminal proceeding contained
in Chapter XVII of the NI Act would amount to a “proceeding”
D within the meaning of s.14(1)(a), the moratorium therefore attaching
to such proceeding – As far as the Directors/persons in management
or control of the corporate debtor are concerned, a s.138/141
proceeding against them cannot be initiated or continued without
the corporate debtor – This is because s.141 speaks of persons in
E charge of, and responsible to the company for the conduct of the
business of the company, as well as the company – For the period
of moratorium, since no s.138/141 proceeding can continue or be
initiated against the corporate debtor because of a statutory bar,
such proceedings can be initiated or continued against the persons
mentioned in s.141(1) and (2) of the NI Act – Thus, moratorium
F provision contained in s.14, IBC would apply only to the corporate
debtor, the natural persons mentioned in s.141 continuing to be
statutorily liable under Chapter XVII of the NI Act – Interpretation
of Statutes.
Insolvency and Bankruptcy Code, 2016 – s.14, ss.3(33), 96(3),
G 101(3) – “Transaction” in s.3(33) – Scope of s.14 – Held: s.14(1)
makes it clear that subject to the exceptions contained in sub-sections
(2) and (3), on the insolvency commencement date, the Adjudicating
Authority shall mandatorily, by order, declare a moratorium to
prohibit what follows in clauses (a) to (d) – s.14(1)(a) does not
indicate as to what the proceedings contained therein apply to –
H
204
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 205

Sub-section 3(a) provides the answer that such “proceedings” relate A
to “transactions” entered into by the corporate debtor pre imposition
of the moratorium – s.3(33) defines “ transaction” – This definition
being an inclusive one is extremely wide in nature and would include
a transaction evidencing a debt or liability – This is made clear by
s.96(3) and s.101(3) which contain the same language as s.14(3)(a),
B
these Sections speaking of ‘debts’ of the individual or firm.
Insolvency and Bankruptcy Code, 2016 – s.14(3)(b) – Held:
By s.14(3)(b), a surety in a contract of guarantee of a debt owed by
a corporate debtor cannot avail of the benefit of a moratorium as a
result of which a creditor can enforce a guarantee, though not being
able to enforce the principal debt during the period of moratorium. C

Insolvency and Banckruptcy Code, 2016 – s.14 – Object of
– Discussed.
Doctrines/Principles – noscitur a sociis or ejusdem generis –
Insolvency and Bankruptcy Code, 2016 – s.14 – “proceedings” – D
Negotiable Instrument Act, 1881 – ss.138, 141 – Held: Ejusdem
generis and noscitur a sociis cannot be exalted to nullify the plain
meaning of words used in a statute if they are designedly used in a
wide sense – Where a residuary phrase is used as a catch-all
expression to take within its scope what may reasonably be
comprehended by a provision, regard being had to its object and E
setting, noscitur a sociis cannot be used to colour an otherwise wide
expression so as to whittle it down and stultify the object of a
statutory provision – noscitur a sociis or ejusdem generis should not
be used to cut down the width of the expression “proceedings” so
as to make such proceedings analogous to civil suits – Interpretation F
of Statutes – Rules of construction.
Insolvency and Bankruptcy Code, 2016 – s.14 vis-à-vis ss.
81, 85, 96, 101 – Scope of proceedings – Held: When the language
of these Sections is juxtaposed against the language of s.14, it is
clear that the width of s.14 is even greater, given that s.14 declares G
a moratorium prohibiting what is mentioned in clauses (a) to (d)
thereof in respect of transactions entered into by the corporate
debtor, inclusive of transactions relating to debts, as contained in
ss.81, 85, 96, and 101 – Also, s.14(1)(d) is conspicuous by its
absence in any of these Sections – Thus, where individuals or firms
are concerned, the recovery of any property by an owner or lessor, H
206 SUPREME COURT REPORTS [2021] 14 S.C.R.

A where such property is occupied by or in possession of the individual
or firm can be recovered during the moratorium period, unlike the
property of a corporate debtor – Negotiable Instrument Act, 1881
– s.138, 141, 143A, 148.
Insolvency and Bankruptcy Code, 2016 – ss.14, 32A (1) –
B Interplay between s.14, 32A – Moratorium – Prior offences, liability
of corporate debtor – Held: The reason for introducing s.32A had
nothing to do with any moratorium provision – It extinguishes
criminal liability of the corporate debtor, from the date the resolution
plan has been approved by the Adjudicating Authority, so that the
new management may make a clean break with the past and start
C on a clean slate – Whereas, a moratorium provision only casts a
shadow on proceedings already initiated and to be initiated –
Insolvency and Bankruptcy Code (Amendment) Act, 2020 – Doctrine
of harmonious construction – Negotiable Instruments Act, 1881 –
ss.138, 141.
D Negotiable Instruments Act, 1881 – Chapter XVII – s.138-
142 – Nature of proceeding under – Held: A s.138 proceeding can
be said to be a “civil sheep” in a “criminal wolf’s” clothing, as it is
the interest of the victim that is sought to be protected, the larger
interest of the State being subsumed in the victim alone moving a
E court in cheque bouncing cases – Code of Criminal Procedure,
1973 – Chapter XIII – ss.177 to 189; ss.62-64, 302, 357.
Negotiable Instruments Act, 1881 – s.138 – Object of –
Discussed.
Negotiable Instruments Act, 1881 – s.138 – Explanation to
F s.138 – Held: It makes clear that the debt or other liability means a
legally enforceable debt or other liability – Thus, a debt or other
liability barred by the law of limitation would be outside the scope
of s.138.
Negotiable Instruments Act, 1881 – s.138 – Penal Code, 1860
– s.53 – Plea that proceedings u/s.138 can only be described as
G
criminal proceedings – Held: Rejected – There are many instances
of acts which are punishable by imprisonment or fine or both which
have been described as quasi-criminal – There is nothing wrong
with the appellation “quasi-criminal” being applied to a s.138
proceeding – Companies Act, 1956 – s.630 – Contempt of Courts
H Act, 1971 – ss.2, 11, 12.
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 207

Negotiable Instruments Act, 1881 – s.139 – Presumption A
under – Discussed.
Negotiable Instruments Act, 1881 – s.140 – Held: It shall not
be a defence in a prosecution for an offence u/s.138 that the drawer
had no reason to believe when he issued the cheque that the cheque
may be dishonoured on presentment for the reasons stated in that B
Section, thus strict liability will attach, mens rea being no ingredient
of the offence.
Insolvency and Bankruptcy Code, 2016 – ss.14, 25(2), 33(5)
– Negotiable Instruments Act, 1881 – ss.138, 141 – Doctrines of
ejusdem generis and noscitur a sociis – Non-application of – Held: U/ C
s.33, the expression “no suit or other legal proceeding” occurs
both in the enacting part as well as the proviso – Going by the
proviso first, given the object that the liquidator has to act on behalf
of the company after a winding-up order is passed, which includes
filing of suits and other legal proceedings on behalf of the company,
there is no reason as to why a s.138/141 proceeding would be outside D
the ken of the proviso – There is no reason why the liquidator cannot
institute a s.138/141 proceeding against a defaulting debtor of the
company – Inelegant drafting cannot lead to absurd results or results
which stultify the object of a provision, given its otherwise wide
language – Interpretation of Statutes. E
Arbitration and Conciliation Act, 1996 – s.34 – Insolvency
and Bankruptcy Code, 2016 – s.14 – Held: s.34 proceeding is
certainly a proceeding against the corporate debtor which may result
in an arbitral award against the corporate debtor being upheld, as
a result of which, monies would then be payable by the corporate F
debtor – Power Grid Corporation of India Ltd. v. Jyoti Structures Ltd.,
reported as (2018) 246 DLT 485 does not state the law correctly.
Words & Expressions:
“or” in s.14(1)(a) – Interpretation of – Held: expression “or”
occurs twice in the first part of s.14(1)(a)- first, between the G
expressions “institution of suits” and “continuation of pending suits”
and second, between the expressions “continuation of pending suits”
and “proceedings against the corporate debtor…” – Expression
“institution of suits or continuation of pending suits” is to be read
as one category, and the disjunctive “or” before the word
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208 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “proceedings” would make it clear that proceedings against the
corporate debtor would be a separate category.
“proceedings” – Meaning of – Discussed – Insolvency and
Bankruptcy Code, 2016 – s.14.
“in respect of” – Held: It is a phrase which is wide and
B includes anything done directly or indirectly – Insolvency and
Bankruptcy Code, 2016 – ss. 81, 85, 96, 101.
“cause of action” – Held: Expression “cause of action” is a
foreigner to criminal jurisprudence, and would apply only in civil
cases to recover money – Insolvency and Bankruptcy Code, 2016 –
C s.14 – Negotiable Instruments Act, 1881 – ss.138, 142 – Code of
Criminal Procdeure, 1973 – Chapter XIII – ss.177 to 189.
Disposing of the matters, the Court
HELD: 1.1 Section 14(1) makes it clear that subject to the
D exceptions contained in sub-sections (2) and (3), on the insolvency
commencement date, the Adjudicating Authority shall
mandatorily, by order, declare a moratorium to prohibit what
follows in clauses (a) to (d). Importantly, under sub-section (4),
this order of moratorium does not continue indefinitely, but has
effect only from the date of the order declaring moratorium till
E the completion of the corporate insolvency resolution process
which is time bound, either culminating in the order of the
Adjudicating Authority approving a resolution plan or in
liquidation. The two exceptions to Section 14(1) are contained in
sub-sections (2) and (3) of Section 14. Under sub-section (2), the
F supply of essential goods or services to the corporate debtor
during this period cannot be terminated or suspended or even
interrupted, as otherwise the corporate debtor would be brought
to its knees and would not able to function as a going concern
during this period. The exception created in sub-section (3) is
important as it refers to “transactions” as may be notified by the
G Central Government in consultation with experts in finance. Thus,
the Central Government, in consultation with experts, may state
that the moratorium provision will not apply to such transactions
as may be notified. Section 14(1)(a) does not indicate as to what
the proceedings contained therein apply to. Sub-section 3(a)
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P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 209

provides the answer – that such “proceedings” relate to A
“transactions” entered into by the corporate debtor pre
imposition of the moratorium. Section 3(33) defines “transaction”.
This definition being an inclusive one is extremely wide in nature
and would include a transaction evidencing a debt or liability. This
is made clear by Section 96(3) and Section 101(3) which contain
B
the same language as Section 14(3)(a), these Sections speaking
of ‘debts’ of the individual or firm. Equally important is Section
14(3)(b), by which a surety in a contract of guarantee of a debt
owed by a corporate debtor cannot avail of the benefit of a
moratorium as a result of which a creditor can enforce a guarantee,
though not being able to enforce the principal debt during the C
period of moratorium. [Paras 10-13][232-G-H; 233-A-C, F-G;
234-B-D]
1.2 The expression “or” occurs twice in the first part of
Section 14(1)(a) – first, between the expressions “institution of
suits” and “continuation of pending suits” and second, between D
the expressions “continuation of pending suits” and “proceedings
against the corporate debtor...”. The sweep of the provision is
very wide indeed as it includes institution, continuation, judgment
and execution of suits and proceedings. An award of an arbitration
panel or an order of an authority is also included. This being the
case, it would be incongruous to hold that the expression “the E
institution of suits or continuation of pending suits” must be read
disjunctively as otherwise, the institution of arbitral proceedings
and proceedings before authorities cannot be subsumed within
the expression institution of “suits” which are proceedings in
civil courts instituted by a plaint (see Section 26 of the Code of F
Civil Procedure, 1908). Therefore, it is clear that the expression
“institution of suits or continuation of pending suits” is to be
read as one category, and the disjunctive “or” before the word
“proceedings” would make it clear that proceedings against the
corporate debtor would be a separate category. What throws light
on the width of the expression “proceedings” is the expression G
“any judgment, decree or order” and “any court of law, tribunal,
arbitration panel or other authority”. Since criminal proceedings
under the Code of Criminal Procedure, 1973 [“CrPC”] are
conducted before the courts mentioned in Section 6, CrPC, it is
clear that a Section 138 proceeding being conducted before a H
210 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Magistrate would certainly be a proceeding in a court of law in
respect of a transaction which relates to a debt owed by the
corporate debtor. [Para 14][234-D-H; 235-A-B]
1.3 Ejusdem generis and noscitur a sociis, being rules as to
the construction of statutes, cannot be exalted to nullify the plain
B meaning of words used in a statute if they are designedly used in
a wide sense. Importantly, where a residuary phrase is used as a
catch-all expression to take within its scope what may reasonably
be comprehended by a provision, regard being had to its object
and setting, noscitur a sociis cannot be used to colour an otherwise
wide expression so as to whittle it down and stultify the object of
C a statutory provision. [Para 22][250-A-B]
State of Assam v. Ranga Mahammad, [1967] 1 SCR 454;
Jagdish Chander Gupta v. Kajaria Traders (India) Ltd.,
[1964] 8 SCR 50; Rajasthan State Electricity Board v.
Mohan Lal, [1967] 3 SCR 377; CBI v. Braj Bhushan
D Prasad, (2001) 9 SCC 432 : [2001] 3 Suppl. SCR 627;
Godfrey Phillips India Ltd. v. State of U.P., (2005) 2
SCC 515 : [2005] 1 SCR 732; Vikram Singh v. Union
of India, (2015) 9 SCC 502 : [2015] 10 SCR 816;
Pioneer Urban Land and Infrastructure Ltd. v. Union
E of India, (2019) 8 SCC 416 : [2019] 10 SCR 381 –
referred to.
2. The object of a moratorium provision such as Section 14
is to see that there is no depletion of a corporate debtor’s assets
during the insolvency resolution process so that it can be kept
F running as a going concern during this time, thus maximizing
value for all stakeholders. The idea is that it facilitates the
continued operation of the business of the corporate debtor to
allow it breathing space to organise its affairs so that a new
management may ultimately take over and bring the corporate
debtor out of financial sickness, thus benefiting all stakeholders,
G which would include workmen of the corporate debtor. Regard
being had to the object sought to be achieved by the IBC in
imposing this moratorium, a quasi-criminal proceeding which
would result in the assets of the corporate debtor being depleted

H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 211

as a result of having to pay compensation which can amount to A
twice the amount of the cheque that has bounced would directly
impact the corporate insolvency resolution process in the same
manner as the institution, continuation, or execution of a decree
in such suit in a civil court for the amount of debt or other liability.
Judged from the point of view of this objective, it is impossible
B
to discern any difference between the impact of a suit and a Section
138 proceeding, insofar as the corporate debtor is concerned, on
its getting the necessary breathing space to get back on its feet
during the corporate insolvency resolution process. Given this
fact, it is difficult to accept that noscitur a sociis or ejusdem generis
should be used to cut down the width of the expression C
“proceedings” so as to make such proceedings analogous to civil
suits. Clause (b) of Section 14(1) also makes it clear that during
the moratorium period, any transfer, encumbrance, alienation, or
disposal by the corporate debtor of any of its assets or any legal
right or beneficial interest therein being also interdicted, yet a
D
liability in the form of compensation payable under Section 138
would somehow escape the dragnet of Section 14(1). While Section
14(1)(a) refers to monetary liabilities of the corporate debtor,
Section 14(1)(b) refers to the corporate debtor’s assets, and
together, these two clauses form a scheme which shields the
corporate debtor from pecuniary attacks against it in the E
moratorium period so that the corporate debtor gets breathing
space to continue as a going concern in order to ultimately
rehabilitate itself. [Paras 23-25][251-C-D; 252-B-D, E-G]
Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC
17: [2019] 3 SCR 535 – relied on. F
Report of the Insolvency Law Committee of February,
2020 – referred to.
3. In Part III of the IBC, which deals with insolvency
resolution and bankruptcy for individuals and partnership firms,
Section 81, which occurs in Chapter II thereof, entitled “Fresh G
Start Process”, an interim moratorium is imposed. Similarly, in
Section 85, which also occurs in Chapter II in Part III of the IBC,
a moratorium is imposed. When the language of Section 14 and

H
212 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Section 85 are contrasted, it becomes clear that though the
language of Section 85 is only in respect of debts, the moratorium
contained in Section 14 is not subject specific. The only light
thrown on the subject is by the exception provision contained in
Section 14(3)(a) which is that “transactions” are the subject
matter of Section 14(1). “Transaction” is a much wider expression
B
than “debt”, and subsumes it. Also, the expression “proceedings”
used by the legislature in Section 14(1)(a) is not trammelled by
the word “legal” as a prefix that is contained in the moratorium
provisions qua individuals and firms. Likewise, the provisions of
Section 96 and Section 101 are moratorium provisions in Chapter
C III of Part III dealing with the insolvency resolution process of
individuals and firms, the same expression, namely, “debts” is
used as is used in Section 85. A legal action or proceeding in
respect of any debt would, on its plain language, include a Section
138 proceeding. This is for the reason that a Section 138
proceeding would be a legal proceeding “in respect of” a debt.
D
“In respect of” is a phrase which is wide and includes anything
done directly or indirectly. This, coupled with the fact that the
Section is not limited to ‘recovery’ of any debt, would indicate
that any legal proceeding even indirectly relatable to recovery of
any debt would be covered. When the language of these Sections
E is juxtaposed against the language of Section 14, it is clear that
the width of Section 14 is even greater, given that Section 14
declares a moratorium prohibiting what is mentioned in clauses
(a) to (d) thereof in respect of transactions entered into by the
corporate debtor, inclusive of transactions relating to debts, as
is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d)
F
is conspicuous by its absence in any of these Sections. Thus,
where individuals or firms are concerned, the recovery of any
property by an owner or lessor, where such property is occupied
by or in possession of the individual or firm can be recovered
during the moratorium period, unlike the property of a corporate
G debtor. For all these reasons, therefore, given the object and
context of Section 14, the expression “proceedings” cannot be
cut down by any rule of construction and must be given a fair
meaning consonant with the object and context. It is conceded
that criminal proceedings which are not directly related to
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P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 213

transactions evidencing debt or liability of the corporate debtor A
would be outside the scope of this expression. [Paras 26, 27,
28][253-A; 255-B-D; 256-F-H; 257-A-C]
State Bank of India v. V. Ramakrishnan, (2018) 17 SCC
394 : [2018] 10 SCR 974 – distinguished.
Macquarie Bank Ltd. v. Shilpi Cable Technologies Ltd., B
(2018) 2 SCC 674 : [2017] 13 SCR 751; Giriraj Garg
v. Coal India Ltd., (2019) 5 SCC 192 : [2019] 2 SCR
239 – referred to.
4. Section 32A cannot possibly be said to throw any light on
the true interpretation of Section 14(1)(a) as the reason for C
introducing Section 32A had nothing whatsoever to do with any
moratorium provision. At the heart of the Section is the
extinguishment of criminal liability of the corporate debtor, from
the date the resolution plan has been approved by the Adjudicating
Authority, so that the new management may make a clean break D
with the past and start on a clean slate. A moratorium provision,
on the other hand, does not extinguish any liability, civil or
criminal, but only casts a shadow on proceedings already initiated
and on proceedings to be initiated, which shadow is lifted when
the moratorium period comes to an end. Also, Section 32A(1)
operates only after the moratorium comes to an end. At the heart E
of Section 32A is the IBC’s goal of value maximisation and the
need to obviate lower recoveries to creditors as a result of the
corporate debtor continuing to be exposed to criminal liability.
Unfortunately, the Section is inelegantly drafted. The second
proviso to Section 32A(1) speaks of persons who are in any F
manner in charge of, or responsible to the corporate debtor for
the conduct of its business or associated with the corporate debtor
and who are, directly or indirectly, involved in the commission of
“such offence”, i.e., the offence referred to in sub-section (1),
“as per the report submitted or complaint filed by the investigating
authority ...”. The report submitted here refers to a police report G
under Section 173 of the CrPC, and complaints filed by
investigating authorities under special Acts, as opposed to private
complaints. If the language of the second proviso is taken to
interpret the language of Section 32A(1) in that the “offence
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214 SUPREME COURT REPORTS [2021] 14 S.C.R.

A committed” under Section 32A(1) would not include offences
based upon complaints under Section 2(d) of the CrPC, the width
of the language would be cut down and the object of Section 32A(1)
would not be achieved as all prosecutions emanating from private
complaints would be excluded. Section 32A(1) cannot be read in
this fashion and clearly incudes the liability of the corporate debtor
B
for all offences committed prior to the commencement of the
corporate insolvency resolution process. Doubtless, a Section
138 proceeding would be included, and would, after the
moratorium period comes to an end with a resolution plan by a
new management being approved by the Adjudicating Authority,
C cease to be an offence qua the corporate debtor. A section which
has been introduced by an amendment into an Act with its focus
on cesser of liability for offences committed by the corporate
debtor prior to the commencement of the corporate insolvency
resolution process cannot be so construed so as to limit, by a
sidewind as it were, the moratorium provision contained in Section
D
14, with which it is not at all concerned. If the first proviso to
Section 32A(1) is read in the manner suggested , it will impact
Section 14 by taking out of its ken Section 138/141 proceedings,
which is not the object of Section 32A(1) at all. Assuming,
therefore, that there is a clash between Section 14 of the IBC
E and the first proviso of Section 32A(1), this clash is best resolved
by applying the doctrine of harmonious construction so that the
objects of both the provisions get subserved in the process,
without damaging or limiting one provision at the expense of the
other. If, therefore, the expression “prosecution” in the first
proviso of Section 32A(1) refers to criminal proceedings properly
F
so-called either through the medium of a First Information Report
or complaint filed by an investigating authority or complaint and
not to quasi-criminal proceedings that are instituted under
Sections 138/141 of the Negotiable Instruments Act against the
corporate debtor, the object of Section 14(1) of the IBC gets
G subserved, as does the object of Section 32A, which does away
with criminal prosecutions in all cases against the corporate
debtor, thus absolving the corporate debtor from the same after
a new management comes in. [Paras 33, 34][262-H; 263-A-H;
264-A-D]
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P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 215

Manish Kumar v. Union of India, 2021 SCC OnLine A
SC 30; CIT v. Ishwarlal Bhagwandas, [1966] 1 SCR
190 – relied on.
Report of the Insolvency Law Committee of February,
2020 – referred to.
5. Section 138 contains within it the ingredients of the B
offence made out. The deeming provision is important in that the
legislature is cognizant of the fact that what is otherwise a civil
liability is now also deemed to be an offence, since this liability is
made punishable by law. The transaction spoken of is a commercial
transaction between two parties which involves payment of money C
for a debt or liability. The explanation to Section 138 makes it
clear that such debt or other liability means a legally enforceable
debt or other liability. Thus, a debt or other liability barred by the
law of limitation would be outside the scope of Section 138. This,
coupled with fine that may extend to twice the amount of the
cheque that is payable as compensation to the aggrieved party to D
cover both the amount of the cheque and the interest and costs
thereupon, would show that it is really a hybrid provision to enforce
payment under a bounced cheque if it is otherwise enforceable in
civil law. Further, though the ingredients of the offence are
contained in the first part of Section 138 when the cheque is E
returned by the bank unpaid for the reasons given in the Section,
the proviso gives an opportunity to the drawer of the cheque,
stating that the drawer must fail to make payment of the amount
within 15 days of the receipt of a notice, again making it clear
that the real object of the provision is not to penalise the
wrongdoer for an offence that is already made out, but to F
compensate the victim. Likewise, under Section 139, a
presumption is raised that the holder of a cheque received the
cheque for the discharge, in whole or in part, of any debt or other
liability. To rebut this presumption, facts must be adduced which,
on a preponderance of probability (not beyond reasonable doubt G
as in the case of criminal offences), must then be proved. Section
140 is also important, in that it shall not be a defence in a
prosecution for an offence under Section 138 that the drawer had
no reason to believe when he issued the cheque that the cheque

H
216 SUPREME COURT REPORTS [2021] 14 S.C.R.

A may be dishonoured on presentment for the reasons stated in
that Section, thus making it clear that strict liability will attach,
mens rea being no ingredient of the offence. Section 141 then
makes Directors and other persons statutorily liable, provided
the ingredients of the section are met. Interestingly, for the
purposes of this Section, explanation (a) defines “company” as
B
meaning any body corporate and includes a firm or other
association of individuals. It has already been seen how the
language of Sections 96 and 101 would include a Section 138/141
proceeding against a firm so that the moratorium stated therein
would apply to such proceedings. If the arguments were to be
C accepted, under the same Section, namely, Section 141, two
different results would ensue – so far as bodies corporate, which
include limited liability partnerships, are concerned, the
moratorium provision contained in Section 14 of the IBC would
not apply, but so far as a partnership firm is concerned, being
covered by Sections 96 and 101 of the IBC, a Section 138/141
D
proceeding would be stopped in its tracks by virtue of the
moratorium imposed by these Sections. Thus, under Section
141(1), whereas a Section 138 proceeding against a corporate
body would continue after initiation of the corporate insolvency
resolution process, yet, the same proceeding against a firm, being
E interdicted by Sections 96 and 101, would not so continue.
Inelegant drafting alone cannot lead to such startling results, the
object of Sections 14 and 96 and 101 being the same namely, to
see that during the insolvency resolution process for corporate
persons/individuals and firms, the corporate body/firm/individual
should be given breathing space to recuperate for a successful
F
resolution of its debts – in the case of a corporate debtor, through
a new management coming in; and in the case of individuals and
firms, through resolution plans which are accepted by a committee
of creditors, by which the debtor is given breathing space in which
to pay back his/its debts, which would result in creditors getting
G more than they would in a bankruptcy proceeding against an
individual or a firm. A cursory reading of Section 142 will again
make it clear that the procedure under the CrPC has been
departed from. First and foremost, no court is to take cognizance
of an offence punishable under Section 138 except on a complaint
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 217

made in writing by the payee or the holder in due course of the A
cheque – the victim. Further, the language of Section 142(1) (b)
would again show the hybrid nature of these provisions inasmuch
as a complaint must be made within one month of the date on
which the “cause of action” under clause (c) of the proviso to
Section 138 arises. The expression “cause of action” is a
B
foreigner to criminal jurisprudence, and would apply only in civil
cases to recover money. Chapter XIII of the CrPC, consisting of
Sections 177 to 189, is a chapter dealing with the jurisdiction of
the criminal courts in inquiries and trials. When the jurisdiction
of a criminal court is spoken of by these Sections, the expression
“cause of action” is conspicuous by its absence. By an C
Amendment Act of 2002, various other sections were added to
this Chapter. Thus, under Section 143, it is lawful for a Magistrate
to pass a sentence of imprisonment for a term not exceeding one
year and a fine exceeding INR 5,000/- summarily. This provision
is again an important pointer to the fact that the payment of
D
compensation is at the heart of the provision in that a fine
exceeding INR 5000/-, the sky being the limit, can be imposed
by way of a summary trial which, after application of Section 357
of the CrPC, results in compensating the victim up to twice the
amount of the bounced cheque. Under Section 144, the mode of
service of summons is done as in civil cases, eschewing the mode E
contained in Sections 62 to 64 of the CrPC. Likewise, under
Section 145, evidence is to be given by the complainant on
affidavit, as it is given in civil proceedings, notwithstanding
anything contained in the CrPC. Most importantly, by Section
147, offences under this Act are compoundable without any
F
intervention of the court, as is required by Section 320(2) of the
CrPC. By another amendment made in 2018, the hybrid nature
of these provisions gets a further tilt towards a civil proceeding,
by the power to direct interim compensation under Sections 143A
and 148. A civil proceeding is not necessarily a proceeding which
begins with the filing of a suit and culminates in execution of a G
decree. It would include a revenue proceeding as well as a writ
petition filed under Article 226 of the Constitution, if the reliefs
therein are to enforce rights of a civil nature. Interestingly,
criminal proceedings are stated to be proceedings in which the
H
218 SUPREME COURT REPORTS [2021] 14 S.C.R.

A larger interest of the State is concerned. Given these tests, it is
clear that a Section 138 proceeding can be said to be a “civil
sheep” in a “criminal wolf’s” clothing, as it is the interest of the
victim that is sought to be protected, the larger interest of the
State being subsumed in the victim alone moving a court in cheque
bouncing cases. The gravamen of a proceeding under Section
B
138, though couched in language making the act complained of
an offence, is really in order to get back through a summary
proceeding, the amount contained in the dishonoured cheque
together with interest and costs, expeditiously and cheaply. It is
the victim alone who can file the complaint which ordinarily
C culminates in the payment of fine as compensation which may
extend to twice the amount of the cheque which would include
the amount of the cheque and the interest and costs thereupon.
A quasi-criminal proceeding that is contained in Chapter XVII of
the Negotiable Instruments Act would, given the object and
context of Section 14 of the IBC, amount to a “proceeding” within
D
the meaning of Section 14(1)(a), the moratorium therefore
attaching to such proceeding. [Paras 36-38, 40-43 and 53]
[265-D-H; 266-A-H; 267-A; 268-A-H; 272-E-G; 288-F-H]
Goaplast (P) Ltd. v. Chico Ursula D’Souza, (2003) 3
SCC 232 : [2003] 2 SCR 712; Vinay Devanna Nayak
E v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC 305 :
[2007] 12 SCR 1134; Damodar S. Prabhu v. Sayed
Babalal H., (2010) 5 SCC 663 : [2010] 5 SCR 678;
JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC
255 : [2012] 3 SCR 114; Kaushalya Devi Massand v.
F Roopkishore Khore, (2011) 4 SCC 593 : [2011] 3 SCR
879; R. Vijayan v. Baby, (2012) 1 SCC 260 : [2011] 14
SCR 712; Dashrath Rupsingh Rathod v. State of
Maharashtra, (2014) 9 SCC 129 : [2014] 11 SCR 921;
Lafarge Aggregates & Concrete India (P) Ltd. v.
Sukarsh Azad, (2014) 13 SCC 779 : [2013] 11 SCR
G 74; Meters and Instruments (P) Ltd. v. Kanchan Mehta,
(2018) 1 SCC 560 : [2017] 10 SCR 66; M. Abbas Haji
v. T.N. Channakeshava, (2019) 9 SCC 606; H.N.
Jagadeesh v. R. Rajeshwari, (2019) 16 SCC 730 –
relied on.
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 219

6. There are many instances of acts which are punishable A
by imprisonment or fine or both which have been described as
quasi-criminal. Though there may not be any watertight distinction
between civil and criminal contempt, yet, an analysis of the
aforesaid authorities would make it clear that civil contempt is
essentially an action which is moved by the party in whose interest
B
an order was made with a view to enforce its personal right, where
contumacious disregard for such order results in punishment of
the offender in public interest, whereas a criminal contempt is, in
essence, a proceeding which relates to the public interest in
seeing that the administration of justice remains unpolluted. What
is of importance is to note that even in cases of civil contempt, C
fine or imprisonment or both may be imposed. The mere fact
that punishments that are awardable relate to Section 53 of the
Indian Penal Code would not, therefore, render a civil contempt
proceeding a criminal proceeding. There is a great deal of wisdom
in the finding of the Sanyal Committee Report that the question
D
whether a contempt is civil or criminal is not to be judged with
reference to the penalty which may be inflicted but with reference
to the cause for which the penalty has been inflicted. Clearly,
therefore, given the hybrid nature of a civil contempt proceeding,
described as “quasi-criminal” by several judgments of this Court,
there is nothing wrong with the same appellation “quasi-criminal” E
being applied to a Section 138 proceeding. [Paras 63, 64]
[302-A-E]
Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd.,
(1995) 3 SCC 732 : [1995] 2 SCR 873; Niaz Mohd. v.
State of Haryana, (1994) 6 SCC 332 : [1994] 3 Suppl. F
SCR 720; T.N. Godavarman Thirumulpad (102) v. Ashok
Khot, (2006) 5 SCC 1 : [2006] 2 Suppl. SCR 215;
Sahdeo v. State of U.P., (2010) 3 SCC 705 : [2010] 2
SCR 1086; Maninderjit Singh Bitta v. Union of India,
(2012) 1 SCC 273; Kanwar Singh Saini v. High Court
of Delhi, (2012) 4 SCC 307 : [2011] 15 SCR 972; T.C. G
Gupta v. Bimal Kumar Dutta, (2014) 14 SCC 446 :
[2013] 12 SCR 170 – relied on.
Andre Paul Terence Ambard v. Attorney-General of
Trinidad and Tobago, AIR 1936 PC 141 – relied on.
Sanyal Committee Report, 1963 - referred to. H
220 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 7. Under Section 33, IBC, the expression “no suit or other
legal proceeding” occurs both in the enacting part as well as the
proviso. Going by the proviso first, given the object that the
liquidator now has to act on behalf of the company after a winding-
up order is passed, which includes filing of suits and other legal
proceedings on behalf of the company, there is no reason as to
B
why a Section 138/141 proceeding would be outside the ken of
the proviso. On the contrary, as the liquidator alone now
represents the company, it is obvious that whatever the company
could do pre-liquidation is now vested in the liquidator, and in
order to realise monies that are due to the company, there is no
C reason why the liquidator cannot institute a Section 138/141
proceeding against a defaulting debtor of the company. Obviously,
this language needs to be construed in the widest possible form
as there cannot be any residuary category of “other legal
proceedings” which can be instituted against some person other
than the liquidator or by the liquidator who now alone represents
D
the company. Given the object of this provision also, what has
been said earlier with regard to the non- application of the
doctrines of ejusdem generis and noscitur a sociis would apply with
all force to this provision as well. Several other provisions of the
IBC may also be looked at in this context. In Section 25(2)(b)
E again, given the fact that it is the resolution professional alone
who is now to preserve and protect the assets of the corporate
debtor in this interregnum, the resolution professional therefore
is to represent and act on behalf of the corporate debtor in all
judicial, quasi-judicial, or arbitration proceedings, which would
include criminal proceedings. Here again, the word “judicial”
F
cannot be construed noscitur a sociis so as to cut down its plain
meaning, as otherwise, quasi-judicial or arbitration proceedings,
not being criminal proceedings, the word “judicial” would then
take colour from them. This would stultify the object sought to
be achieved by Section 25 and result in an absurdity, namely, that
G during this interregnum, nobody can represent or act on behalf
of the corporate debtor in criminal proceedings. Likewise, if a
corporate debtor cannot be taken over by a new management
and has to be condemned to liquidation, the powers and duties of
the liquidator, while representing the corporate debtor, are
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 221

enumerated in Section 35. Section 35(1)(k) specifically speaks of A
“prosecution” and “criminal proceedings”. Contrasted with
Section 25(2)(b) and Section 33(5), an argument could be made
that the absence of the expressions “prosecution” and “criminal
proceedings” in Section 25(2)(b) and Section 33(5) would show
that they were designedly eschewed by the legislature. Inelegant
B
drafting cannot lead to absurd results or results which stultify
the object of a provision, given its otherwise wide language. Thus,
nothing can be gained by juxtaposing various provisions against
each other and arriving at conclusions that are plainly untenable
in law. [Paras 65, 66][303-B-F; 304-A-D, F-G]
8. A Section 34 proceeding is certainly a proceeding against C
the corporate debtor which may result in an arbitral award against
the corporate debtor being upheld, as a result of which, monies
would then be payable by the corporate debtor. A Section 34
proceeding is a proceeding against the corporate debtor in a court
of law pertaining to a challenge to an arbitral award and would be D
covered just as an appellate proceeding in a decree from a suit
would be covered. [Para 74][311-F-G]
Power Grid Corporation of India Ltd. v. Jyoti Structures
Ltd., 2017 SCC OnLine Del 12189 : (2018) 246 DLT
485 – held not correct law. E
9. As far as the Directors/persons in management or control
of the corporate debtor are concerned, a Section 138/141
proceeding against them cannot be initiated or continued without
the corporate debtor. This is because Section 141 of the
Negotiable Instruments Act speaks of persons in charge of, and F
responsible to the company for the conduct of the business of
the company, as well as the company. Since the corporate debtor
would be covered by the moratorium provision contained in
Section 14 of the IBC, by which continuation of Section 138/141
proceedings against the corporate debtor and initiation of Section
138/141 proceedings against the said debtor during the corporate G
insolvency resolution process are interdicted, what is stated in
paragraphs 51 and 59 in Aneeta Hada would then become
applicable. The legal impediment contained in Section 14 of the

H
222 SUPREME COURT REPORTS [2021] 14 S.C.R.

A IBC would make it impossible for such proceeding to continue
or be instituted against the corporate debtor. Thus, for the period
of moratorium, since no Section 138/141 proceeding can continue
or be initiated against the corporate debtor because of a statutory
bar, such proceedings can be initiated or continued against the
persons mentioned in Section 141(1) and (2) of the Negotiable
B
Instruments Act. This being the case, it is clear that the
moratorium provision contained in Section 14 of the IBC would
apply only to the corporate debtor, the natural persons mentioned
in Section 141 continuing to be statutorily liable under Chapter
XVII of the Negotiable Instruments Act. A Section 138/141
C proceeding against a corporate debtor is covered by Section
14(1)(a) of the IBC. The civil appeal is allowed and the judgment
under appeal is set aside. However, the Section 138/141
proceedings in this case will continue both against the company
as well as the appellants for the reason given in paragraph 77 in
the present judgment as well as the fact that the insolvency
D
resolution process does not involve a new management taking
over. The moratorium period has come to an end in this case.
[Paras 77-79][315-B-C; 316-H; 317-A-F]
Aneeta Hada v. Godfather Travels & Tours (P) Ltd.,
(2012) 5 SCC 661 : [2012] 5 SCR 503 – relied on.
E
Tayal Cotton Pvt. Ltd. v. State of Maharashtra, 2018
SCC OnLine Bom 2069 : (2019) 1 Mah LJ 312; M/s
MBL Infrastructure Ltd. v. Manik Chand Somani, CRR
3456/2018 – disapproved.

F BSI Ltd. v. Gift Holdings (P) Ltd., (2000) 2 SCC 737 :
[2000] 1 SCR 815; Kusum Ingots & Alloys Ltd. v.
Pennar Peterson Securities Ltd., (2000) 2 SCC 745 :
[2000] 1 SCR 1120; S.V. Kandeakar v. V.M. Deshpande,
(1972) 1 SCC 438 : [1972] 2 SCR 965; D.K. Kapur v.
Reserve Bank of India, 2001 SCC OnLine Del 67 :
G (2001) 58 DRJ 424 (DB); Indorama Synthetics (I) Ltd.
v. State of Maharashtra, 2016 SCC OnLine Bom 2611
: (2016) 4 Mah LJ 249; Sudarshan Chits (I) Ltd. v. O.
Sukumaran Pillai, (1984) 4 SCC 657 : [1985] 1 SCR

H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 223

511; Central Bank of India v. Elmot Engineering Co., A
(1994) 4 SCC 159 : [1994] 3 SCR 766; Inderjit C.
Parekh v. V.K. Bhatt, (1974) 4 SCC 313 : [1974] 3
SCR 50; Deputy Director, Directorate of Enforcement
Delhi v. Axis Bank, 2019 SCC OnLine Del 7854 : (2019)
259 DLT 500 – distinguished.
B
Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC
631 : [2001] 1 SCR 54; Makwana Mangaldas Tulsidas
v. State of Gujarat, (2020) 4 SCC 695 – referred to.
Case Law Reference
[2012] 5 SCR 503 relied on para 8 C

[2018] 10 SCR 974 distinguished para 13
[1967] 1 SCR 454 referred to para 15
[1964] 8 SCR 50 referred to para 16
D
[1967] 3 SCR 377 referred to para 17
[2001] 3 Suppl. SCR 627 referred to para 18
[2005] 1 SCR 732 referred to para 19
[2015] 10 SCR 816 referred to para 20
E
[2019] 10 SCR 381 referred to paras 21
[2019] 3 SCR 535 relied on Para 22
[2017] 13 SCR 751 referred to para 27
[2019] 2 SCR 239 referred to para 27
F
[1966] 1 SCR 190 relied on para 43
[2003] 2 SCR 712 relied on para 44
[2007] 12 SCR 1134 relied on para 45
[2010] 5 SCR 678 relied on para 46 G
[2012] 3 SCR 114 relied on para 46
[2011] 3 SCR 879 relied on para 47
[2011] 14 SCR 712 relied on para 48
[2014] 11 SCR 921 relied on para 49 H
224 SUPREME COURT REPORTS [2021] 14 S.C.R.

A [2013] 11 SCR 74 relied on para 50
[2001] 1 SCR 54 referred to para 50.6
[2017] 10 SCR 66 relied on para 51
(2019) 9 SCC 606 relied on para 52
B (2019) 16 SCC 730 relied on para 52
(2020) 4 SCC 695 referred to para 18.5
[1995] 2 SCR 873 relied on para 54
[1994] 3 Suppl. SCR 720 relied on para 60
C
[2006] 2 Suppl. SCR 215 relied on para 60
[2010] 2 SCR 1086 relied on para 62
(2012) 1 SCC 273 relied on para 62
[2011] 15 SCR 972 relied on para 62
D
[2013] 12 SCR 170 relied on para 62
[2000] 1 SCR 815 distinguished para 67
[2000] 1 SCR 1120 distinguished para 68
[1972] 2 SCR 965 distinguished para 70
E
[1985] 1 SCR 511 distinguished para 70
[1994] 3 SCR 766 distinguished para 70
[1974] 3 SCR 50 distinguished para 75

F CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10355
of 2018.
From the Judgment and Order dated 31.07.2018 of the National
Company Law Appellate Tribunal, New Delhi in Company Appeal (AT)
(Insolvency) No. 306 of 2018.
G With
Criminal Appeal Nos. 239, 240, 241, 242, 243, 244, 245, 246, 247-
48, 200, 199 of 2021, Writ Petition (Criminal) Nos. 330, 339, 982, 297,
342 of 2020, Criminal Appeal Nos. 201-204, 215-230 of 2021, Writ Petition
(Civil) Nos. 1417, 1439 of 2020, Writ Petition (Civil) No. 18 of 2021, writ
H Petition (Criminal) Nos. 9, 26 of 2021.
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 225

Aman Lekhi, ASG, Jayanth Muth Raj, S. Nagamuthu, Gopal A
Sankaranarayanan, Salman Khurshid, Brijender Chahar, Ms. Sonia
Mathur, Gurinder Singh Gill, Siddhartha Dave, Jay Savla, Sr. Advs., Mrs.
Malavika Jayanth, C.K.Sasi, M.P. Parthiban, A.S. Vairawan, Mani Prabu,
Santhosh, R. Sudhakaran, Rajat Bhardwaj, Mohd. Ainul Ansari, Kripa
Shankar Prasad, Sunil Khatwani, Ms. Ekta Rani, Ms. Ritu Rajkumari,
B
Shreyas Mehrotra, Rahul Gupta, Aman Preet Singh Rahi, A. Venayagam
Balan, K. Krishna Kumar, Navjinder Sidhu, Amarjeet Singh, Vivek Jain,
Ms. Suchitra Khumbhat, Nirvikar Singh, Nitin Sharma, Vaibhav Manu
Srivastava, Mahesh Srivastava, Bhanu Pant, Apoorv Agarwal, Ms. Riya
Thomas, Ms. Aadya Mishra, Vikas Chaudhary, Mrs. Somna Dhown,
Anurag Kishore, Aman Vachher, Dhiraj, Ashutosh Dubey, Abhishek C
Chauhan, Arun Nagar for M/s. Vachher And Agrud, Arvind Kumar Gupta,
Ms. Henna George, Ms. Shivani, Ravindra Sadanand Chingale, Ms. Purti
Gupta, Ms. Twisha Issar, Kartik Seth, Ms. Shriya Gilhotra for M/s.
Chambers Of Kartik Seth, Ms. Swati Bhushan Sharma, Ms. Nandini
Gupta, Krishna Kumar, Dr. (Mrs.) Vipin Gupta, Amarjeet Singh, M/S.
D
Chambers Of Kartik Seth, M/S. Vachher And Agrud, Mr. Jayant Mehta,
Ms. Pritha Srikumar Iyer, Sulabh Rewari, Ms. Arunima Kedia, Ms. Neha
Mathen, Ms. Smriti Verma, Rishabh Sancheti, Prabu Ramasubramanian,
Raghunatha Sethupathy, Karuppiah Meyyappan, Nishtha Girotra, K. Paari
Vendhan, Aravindh S., Ms. Chamundi Bose, Prabhakar V., Aditya Singh,
Pankaj Yadav, Akshat Goel, Shubham Singh, Anubhav Singh, Karan E
Chahar, Ms. Jyoti Chahar, Shashi Bhushan, Vinay Garg, Ms. Anisha
Upadhyay, Sudhansu Palo, Sanjeev Singh, Prashant Tripathi, Ms.
Sampanna Pani, Ms. Kajal Bhatia, Abhinav Agrawal, Sanjay S. Chhabra,
Vijay Laxmi Mewara, Ms. Swati Tiwari, B. V. Balaram Das, Ms.
Swarupama Chaturvedi, Ms. Praveena Gautam, Arvind Sharma, Arvind
F
Kumar Sharma, Nishanth Patil, Ms. Jaspreet Gogia, Karanvir Gogia,
Ms. Shivangi Singhal, Gagan Gupta, Harmeet Singh Oberoi, Sumit
Teterrwal, Shankar Divate, Varun Bedi, Rameshwar Prasad Goyal, Ms.
Suruchii Aggarwal, Ms. Shagun Matta, Deepak Bashta, Sanjiv Kakra,
Bheem Sain Jain, Nagarkatti Kartik Uday, Narender Kumar Verma,
Ved Prakash, Rajiv Ranjan Dwivedi, Vinod Kumar, Vivek Bhojrajika, G
Chirag M. Shroff, Ms. Abhilasha Bharti, Sushant Dogra, Ms. Mukti
Chaudhry, Ms. Deepanwita Priyanka, Aniruddha P. Mayee, Vikas Mehta,
Saurobroto Dutta, Ms. Debolina Roy, Apoorv Khator, Sonal Jain, Rishabh
Raj Jain, Ishkaran Singh, Manoj Kumar Mishra, Sarvesh Singh Baghel,
Ms. Shivranjani Ralawata, Ms. Namita Choudhary, Ms. Aashna Gill,
H
226 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Pratap Singh Gill, Ms. Bhupinder, Ms. Vandana Hooda, P.P. Nayak,
Kuldeep Singh Kuchaliya, Ajay Pal, Pravin Kapur, Dhananjay Garg,
Abhishek Garg, D.K. Garg, Chanakya Gupta, Jagdish Sethi, Ms. Monisha
Handa, Ms. Soumya Gupta, Mohit D. Ram, Ms. Renuka Sahu, Prabhat
Chaurasia, Hemant Gupta, Aman Rastogi, Sanjay Rastogi, Abhishek
Agarwal, Raveesh Thukral, Aditya Vashishth, Siddharth Sangal, Ms.
B
Pritha Srikumar, Gagan Gupta, Dinesh Kumar Garg, Ms. Suruchii
Aggarwal, Sarvesh Singh Baghel, Ajay Pal, Rajiv Ranjan Dwivedi, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
C R. F. NARIMAN, J.
1. Steel products were supplied by the respondent to one M/s.
Diamond Engineering Pvt. Ltd. [“the company”] from 21.09.2015 to
11.11.2016, as a result of which INR 24,20,91,054/- was due and payable
by the company. As many as 51 cheques were issued by the company in
D favour of the respondent towards amounts payable for supplies, all of
which were returned dishonoured for the reason “funds insufficient” on
03.03.2017. As a result, on 31.03.2017, the respondent issued a statutory
demand notice under Section 138 read with Section 141 of the Negotiable
Instruments Act, 1881, calling upon the company and its three Directors,
the appellants no.1-3 herein, to pay this amount within 15 days of the
E receipt of the notice.
2. On 28.04.2017, two cheques for a total amount of INR
80,70,133/- presented by the respondent for encashment were returned
dishonoured for the reason “funds insufficient”. A second demand notice
dated 05.05.2017 was therefore issued under the selfsame Sections by
F the respondent, calling upon the company and the appellants to pay this
amount within 15 days of the receipt of the notice.
3. Since no payment was forthcoming pursuant to the two statutory
demand notices, two criminal complaints, being Criminal Complaint
No.SS/552/2017 and Criminal Complaint No. SS/690/2017 dated
G 17.05.2017 and 21.06.2017, respectively, were filed by the respondent
against the company and the appellants under Section 138 read with
Section 141 of the Negotiable Instruments Act before the Additional
Chief Metropolitan Magistrate [“ACMM”], Kurla, Mumbai. On
12.02.2018, summons were issued by the ACMM to the company and
the appellants in both the criminal complaints.
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 227
[R. F. NARIMAN, J.]

4. Meanwhile, as a statutory notice under Section 8 of the A
Insolvency and Bankruptcy Code, 2016 [“IBC”] had been issued on
21.03.2017 by the respondent to the company, and as an order dated
06.06.2017 was passed by the Adjudicating Authority admitting the
application under Section 9 of the IBC and directing commencement of
the corporate insolvency resolution process with respect to the company,
B
a moratorium in terms of Section 14 of the IBC was ordered. Pursuant
thereto, on 24.05.2018, the Adjudicating Authority stayed further
proceedings in the two criminal complaints pending before the ACMM.
In an appeal filed to the National Company Law Appellate Tribunal
[“NCLAT”], the NCLAT set aside this order, holding that Section 138,
being a criminal law provision, cannot be held to be a “proceeding” within C
the meaning of Section 14 of the IBC. In an appeal filed before this
Court, on 26.10.2018, this Court ordered a stay of further proceedings in
the two complaints pending before the learned ACMM. On 30.09.2019,
since a resolution plan submitted by the promoters of the company had
been approved by the committee of creditors, the Adjudicating Authority
D
approved such plan as a result of which, the moratorium order dated
06.06.2017 ceased to have effect. It may only be added that at present,
an application for withdrawal of approval of this resolution plan has been
filed by the financial creditors of the company before the Adjudicating
Authority. Equally, an application to extend time for implementation of
this plan has been filed by the resolution applicant sometime in October E
2020 before the Adjudicating Authority. Both these applications have
yet to be decided by the Adjudicating Authority, the next date of hearing
before such Authority being 08.02.2021.
5. The important question that arises in this appeal is whether the
institution or continuation of a proceeding under Section 138/141 of the F
Negotiable Instruments Act can be said to be covered by the moratorium
provision, namely, Section 14 of the IBC.
6. Shri Jayanth Muth Raj, learned Senior Advocate appearing on
behalf of the appellants, has painstakingly taken us through various
provisions of the IBC and has argued that the object of Section 14 being G
that the assets of the corporate debtor be preserved during the corporate
insolvency resolution process, it would be most incongruous to hold that
a Section 138 proceeding, which, although a criminal proceeding, is in
essence to recover the amount of the bounced cheque, be kept out of
the word “proceedings” contained in Section 14(1)(a) of the IBC.
H
228 SUPREME COURT REPORTS [2021] 14 S.C.R.

A According to the learned Senior Advocate, given the object of Section
14, there is no reason to curtail the meaning of the expression
“proceedings”, which would therefore include all proceedings against
the corporate debtor, civil or criminal, which would result in “execution”
of any judgment for payment of compensation. He emphasised the fact
that Section 14(1)(a) was extremely wide and ought not to be cut down
B
by judicial interpretation given the expression “any” occurring twice in
Section 14(1)(a), thus emphasising that so long as there is a judgment by
any court of law (which even extends to an order by an authority) which
results in coercive steps being taken against the assets of the corporate
debtor, all such proceedings are necessarily subsumed within the meaning
C of Section 14(1)(a). He also referred to the width of Section 14(1)(b)
and the language of Section 14(1)(b) and therefore argued that given
the object of Section 14, no rule of construction, be it ejusdem generis
or noscitur a sociis can be used to cut down the plain meaning of the
words used in Section 14(1)(a). He cited a number of judgments in support
of this proposition. He also argued that in any event, even if criminal
D
proceedings properly so-called are to be excluded from Section 14(1)(a),
a Section 138 proceeding being quasi-criminal in nature, whose dominant
object is compensation being payable to the person in whose favour a
cheque is made, which has bounced, the punitive aspect of Section 138
being only to act as an interrorem proceeding to achieve this result, it is
E clear that in any event, a hybrid proceeding partaking of this nature
would certainly be covered. He cited a number of judgments in order to
buttress this proposition as well.
7. Shri Jayant Mehta, learned Advocate appearing on behalf of
the respondent, rebutted each of these submissions with erudition and
F grace. He referred to the Report of the Insolvency Law Committee of
February 2020 to drive home his point that the object of Section 14 being
a limited one, a criminal proceeding could not possibly be included within
it. He further went on to juxtapose the moratorium provisions which
would apply in the case of individuals and firms in Sections 85, 96, and
101 of the IBC, emphasising that the language of these provisions being
G wider would, by way of contrast, include a Section 138 proceeding so
far as individuals and firms are concerned, which has been expressly
eschewed so far as Section 14’s applicability to corporate debtors is
concerned. He relied upon the ejusdem generis/noscitur a sociis rules
of construction that had, in fact, been applied to Section 14(1)(a) by the
H Bombay High Court and the Calcutta High Court to press home his
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 229
[R. F. NARIMAN, J.]

point that since the expression “proceedings” takes its colour from the A
previous expression “suits”, such proceedings must necessarily be civil
in nature. He cited judgments which distinguish between civil and criminal
proceedings and went on to argue that Section 138 of the Negotiable
Instruments Act is a criminal proceeding whose object may be two fold,
the primary object being to make what was once a civil wrong punishable
B
by a jail sentence and/or fine. He relied heavily upon judgments which
construed like expressions contained in Section 22(1) of the Sick Industrial
Companies Act, 1985 [“SICA”], and Section 446(2) of the Companies
Act, 1956. He also was at pains to point out from several judgments that
the Delhi High Court had not applied Section 14 of the IBC to stay
proceedings under Section 34 of the Arbitration and Conciliation Act, C
1996; the Bombay High Court had not applied Section 14 of the IBC to
stay prosecution under the Employees’ Provident Funds Act, 1952; and
that the Delhi High Court had not stayed proceedings covered by the
Prevention of Money-Laundering Act, 2002, stating that criminal
proceedings were not the subject matter of Section 14 of the IBC. He
D
thus supported the judgment under appeal, stating that the consistent
view of the High Courts has been that Section 138, being a criminal law
provision, could not possibly be said to be covered by Section 14 of the
IBC. He also relied upon the provision contained in Section 33(5) of the
IBC to argue that when a liquidation order is passed, no suit or other
legal proceeding can be instituted by or against a corporate debtor, similar E
to what is contained in Section 446 of the Companies Act, 1956, and if
those decisions are seen, then the expression “or other legal proceeding”
obviously cannot include criminal proceedings. On the other hand, in any
case, the expression “or other legal proceeding” should be contrasted
with the word “proceedings” in Section 14(1)(a) of the IBC, which cannot
F
possibly include a criminal proceeding, given its object. Lastly, he also
relied upon Section 32A of the IBC, which was introduced by the
Insolvency and Bankruptcy Code (Amendment) Act, 2020 w.e.f.
28.12.2019, and emphasised the fact that the liability of a corporate debtor
for an offence committed prior to the commencement of the corporate
insolvency resolution process shall cease in certain circumstances. This G
provision would have been wholly unnecessary if Section 14(1)(a) were
to cover criminal offences as well, as they would cease for the period of
moratorium. Thus, he argued that this Section throws considerable light
on the fact that criminal prosecutions are outside the ken of the expression
“proceedings” contained in Section 14(1)(a) of the IBC.
H
230 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 8. Shri Aman Lekhi, learned Additional Solicitor General, appearing
on behalf of the Union of India in W.P. (Crl.) No. 297/2020, has
comprehensively taken us through Chapter XVII of the Negotiable
Instruments Act to argue that a plain reading of the said Chapter would
reveal that the offence under Section 138 is a purely criminal offence
which results in imposition of a jail sentence or fine or both, being
B
punishments exclusively awardable under Section 53 of the Indian Penal
Code, 1860 only in a criminal proceeding, and hence, does not fall within
“proceedings” contemplated by Section 14 of the IBC. He further states
that since compounding under criminal law can only take place at the
instance of the complainant/injured party, a subordinate criminal court
C has no inherent power to terminate proceedings under Section 138/141
upon “payment of compensation to the satisfaction of the court”. He
then relied upon the rule of noscitur a sociis to state that since the
expression “proceedings” contained in Section 14(1)(a) of the IBC is
preceded by the expression “suits” and followed by the expression
“execution”, it has to be read in a sense analogous to civil proceedings
D
dealing with private rights of action as contrasted with criminal
proceedings which deal with public wrongs. According to the learned
Additional Solicitor General, the intent manifest in Section 14 of the IBC
is reinforced by the introduction of Section 32A to the IBC in that if the
intent of Section 14 were to prohibit initiation or continuation of criminal
E proceedings, the legislature would not have contemplated the introduction
of Section 32A by way of amendment. He further states that if the
expression “proceedings” contained in Section 14 were to be construed
so as to include criminal proceedings, it would render the first proviso to
Section 32, which deals with institution of prosecution against a corporate
debtor during the corporate insolvency resolution process, and the second
F
proviso, which indicates pendency of criminal prosecution against those
in charge of and responsible for the conduct of the corporate debtor,
otiose. He relied on the judgment in Aneeta Hada v. Godfather Travels
& Tours (P) Ltd., (2012) 5 SCC 661 [“Aneeta Hada”] to buttress his
submission that criminal liability can fall on Directors/persons in charge
G of and responsible for the conduct of the corporate debtor even where
the corporate debtor may not be proceeded against by virtue of Section
14 or Section 32A. He lastly submits that Sections 81 and 101 of the
IBC, in speaking of a moratorium in context of “any debt” also lend
support to his contention that moratorium under the IBC only applies to
civil proceedings within the realm of private law, and that since Section
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 231
[R. F. NARIMAN, J.]

138 proceedings are not proceedings for the recovery of a debt, they A
cannot fall within the moratorium provisions set out by Sections 14 or 81
or 101.
INTERPRETATION OF SECTION 14 OF THE IBC
9. Having heard learned counsel, it is important at this stage to set
out Section 14 of the IBC, which reads as follows: B

“14. Moratorium.—(1) Subject to provisions of sub-sections (2)
and (3), on the insolvency commencement date, the Adjudicating
Authority shall by order declare moratorium for prohibiting all of
the following, namely—
C
(a) the institution of suits or continuation of pending suits
or proceedings against the corporate debtor including
execution of any judgment, decree or order in any
court of law, tribunal, arbitration panel or other
authority;
D
(b) transferring, encumbering, alienating or disposing of
by the corporate debtor any of its assets or any legal
right or beneficial interest therein;
(c) any action to foreclose, recover or enforce any
security interest created by the corporate debtor in
E
respect of its property including any action under the
Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 (54
of 2002);
(d) the recovery of any property by an owner or lessor
F
where such property is occupied by or in the
possession of the corporate debtor.
Explanation.—For the purposes of this sub-section, it is
hereby clarified that notwithstanding anything contained in any
other law for the time being in force, a license, permit, registration,
quota, concession, clearances or a similar grant or right given by G
the Central Government, State Government, local authority, sectoral
regulator or any other authority constituted under any other law
for the time being in force, shall not be suspended or terminated
on the grounds of insolvency, subject to the condition that there is
no default in payment of current dues arising for the use or H
232 SUPREME COURT REPORTS [2021] 14 S.C.R.

A continuation of the license, permit, registration, quota, concession,
clearances or a similar grant or right during the moratorium period.
(2) The supply of essential goods or services to the corporate
debtor as may be specified shall not be terminated or suspended
or interrupted during moratorium period.
B (2-A) Where the interim resolution professional or resolution
professional, as the case may be, considers the supply of goods or
services critical to protect and preserve the value of the corporate
debtor and manage the operations of such corporate debtor as a
going concern, then the supply of such goods or services shall not
C be terminated, suspended or interrupted during the period of
moratorium, except where such corporate debtor has not paid
dues arising from such supply during the moratorium period or in
such circumstances as may be specified.
(3) The provisions of sub-section (1) shall not apply to—
D (a) such transactions, agreements or other arrangements
as may be notified by the Central Government in
consultation with any financial sector regulator or any
other authority;
(b) a surety in a contract of guarantee to a corporate
E debtor.
(4) The order of moratorium shall have effect from the date of
such order till the completion of the corporate insolvency resolution
process:
Provided that where at any time during the corporate insolvency
F
resolution process period, if the Adjudicating Authority approves
the resolution plan under sub-section (1) of Section 31 or passes
an order for liquidation of corporate debtor under Section 33, the
moratorium shall cease to have effect from the date of such
approval or liquidation order, as the case may be.”
G 10. A cursory look at Section 14(1) makes it clear that subject to
the exceptions contained in sub-sections (2) and (3), on the insolvency
commencement date, the Adjudicating Authority shall mandatorily, by
order, declare a moratorium to prohibit what follows in clauses (a) to
(d). Importantly, under sub-section (4), this order of moratorium does
H not continue indefinitely, but has effect only from the date of the order
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 233
[R. F. NARIMAN, J.]

declaring moratorium till the completion of the corporate insolvency A
resolution process which is time bound, either culminating in the order of
the Adjudicating Authority approving a resolution plan or in liquidation.
11. The two exceptions to Section 14(1) are contained in sub-
sections (2) and (3) of Section 14. Under sub-section (2), the supply of
essential goods or services to the corporate debtor during this period B
cannot be terminated or suspended or even interrupted, as otherwise the
corporate debtor would be brought to its knees and would not able to
function as a going concern during this period. The exception created in
sub-section (3)(a) is important as it refers to “transactions” as may be
notified by the Central Government in consultation with experts in finance.
The expression “financial sector regulator” is defined by Section 3(18) C
as follows:
“3. Definitions.—In this Code, unless the context otherwise
requires,—
xxx xxx xxx D
(18) “financial sector regulator” means an authority or body
constituted under any law for the time being in force to regulate
services or transactions of financial sector and includes the
Reserve Bank of India, the Securities and Exchange Board of
India, the Insurance Regulatory and Development Authority of E
India, the Pension Fund Regulatory Authority and such other
regulatory authorities as may be notified by the Central
Government;
xxx xxx xxx”
12. Thus, the Central Government, in consultation with experts, F
may state that the moratorium provision will not apply to such transactions
as may be notified. This is of some importance as Section 14(1)(a) does
not indicate as to what the proceedings contained therein apply to. Sub-
section 3(a) provides the answer – that such “proceedings” relate to
“transactions” entered into by the corporate debtor pre imposition of the
G
moratorium. Section 3(33) defines “transaction” as follows:
“3. Definitions.—In this Code, unless the context otherwise
requires,—
xxx xxx xxx
H
234 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (33) “transaction” includes an agreement or arrangement in writing
for the transfer of assets, or funds, goods or services, from or to
the corporate debtor;
xxx xxx xxx”

B 13. This definition being an inclusive one is extremely wide in
nature and would include a transaction evidencing a debt or liability. This
is made clear by Section 96(3) and Section 101(3) which contain the
same language as Section 14(3)(a), these Sections speaking of ‘debts’
of the individual or firm. Equally important is Section 14(3)(b), by which
a surety in a contract of guarantee of a debt owed by a corporate debtor
C cannot avail of the benefit of a moratorium as a result of which a creditor
can enforce a guarantee, though not being able to enforce the principal
debt during the period of moratorium – see State Bank of India v. V.
Ramakrishnan, (2018) 17 SCC 394(at paragraph 20) [“V.
Ramakrishnan”].
D 14. We now come to the language of Section 14(1)(a). It will be
noticed that the expression “or” occurs twice in the first part of Section
14(1)(a) – first, between the expressions “institution of suits” and
“continuation of pending suits” and second, between the expressions
“continuation of pending suits” and “proceedings against the corporate
E debtor…”. The sweep of the provision is very wide indeed as it includes
institution, continuation, judgment and execution of suits and
proceedings. It is important to note that an award of an arbitration
panel or an order of an authority is also included. This being the case,
it would be incongruous to hold that the expression “the institution of
suits or continuation of pending suits” must be read disjunctively as
F
otherwise, the institution of arbitral proceedings and proceedings before
authorities cannot be subsumed within the expression institution of
“suits” which are proceedings in civil courts instituted by a plaint (see
Section 26 of the Code of Civil Procedure, 1908). Therefore, it is clear
that the expression “institution of suits or continuation of pending suits”
G is to be read as one category, and the disjunctive “or” before the word
“proceedings” would make it clear that proceedings against the
corporate debtor would be a separate category. What throws light on
the width of the expression “proceedings” is the expression “any
judgment, decree or order” and “any court of law, tribunal, arbitration
panel or other authority”. Since criminal proceedings under the Code of
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 235
[R. F. NARIMAN, J.]

Criminal Procedure, 1973 [“CrPC”] are conducted before the courts A
mentioned in Section 6, CrPC, it is clear that a Section 138 proceeding
being conducted before a Magistrate would certainly be a proceeding in
a court of law in respect of a transaction which relates to a debt owed
by the corporate debtor. Let us now see as to whether the expression
“proceedings” can be cut down to mean civil proceedings stricto sensu
B
by the use of rules of interpretation such as ejusdem generis and
noscitur a sociis.
APPLICATION OF THE NOSCITUR A SOCIIS RULE OF
INTERPRETATION
15. Shri Aman Lekhi, learned Additional Solicitor General, relied C
upon the judgment in State of Assam v. Ranga Mahammad, (1967) 1
SCR 454.The Court was concerned with the meaning of the expression
“posting” which occurs in Article 233 of the Constitution, qua District
Judges in a State. Applying the doctrine of noscitur a sociis, this Court
held that given the fact that the expression “posting” comes in between D
“appointment” and “promotion” of District Judges, it is clear that a
narrower meaning has to be assigned to it, namely, that of assigning
someone to a post which would not include “transfer”. Quite apart from
the positioning of the word “posting” in between “appointment” and
“promotion”, from which it took its colour, even otherwise, Articles 234
and 235 of the Constitution would make it clear that since “transfer” of E
District Judges is with the High Court and not with the State Government,
quite obviously, the expression “posting” could not be used in its wider
sense – see pages 460 and 461. This judgment is an early application of
the rule of noscitur a sociis, given the position of a wider word between
two narrow words, and more importantly, the reading of other allied F
provisions in the Constitution.
16. In Jagdish Chander Gupta v. Kajaria Traders (India) Ltd.,
(1964) 8 SCR 50, a five-Judge Bench of this Court had to decide as to
whether the expression “or other proceeding” occurring in Section 69(3)
of the Indian Partnership Act, 1932 would include a proceeding to appoint G
an arbitrator under Section 8(2) of the Arbitration Act, 1940. This Court
held:
“It remains, however, to consider whether by reason of the
fact that the words “other proceeding” stand opposed to the words
“a claim of set-off” any limitation in their meaning was H
236 SUPREME COURT REPORTS [2021] 14 S.C.R.

A contemplated. It is on this aspect of the case that the learned
Judges have seriously differed. When in a statute particular classes
are mentioned by name and then are followed by general words,
the general words are sometimes construed ejusdem generis i.e.
limited to the same category or genus comprehended by the
particular words but it is not necessary that this rule must always
B
apply. The nature of the special words and the general words
must be considered before the rule is applied. In Allen v. Emersons
[(1944) IKB 362] Asquith, J., gave interesting examples of
particular words followed by general words where the principle
of ejusdem generis might or might not apply. We think that the
C following illustration will clear any difficulty. In the expression
“books, pamphlets, newspapers and other documents” private
letters may not be held included if “other documents” be interpreted
ejusdem generis with what goes before. But in a provision which
reads “newspapers or other document likely to convey secrets to
the enemy”, the words “other document” would include document
D
of any kind and would not take their colour from “newspapers”.
It follows, therefore, that interpretation ejusdem generis or noscitur
a sociis need not always be made when words showing particular
classes are followed by general words. Before the general words
can be so interpreted there must be a genus constituted or a
E category disclosed with reference to which the general words
can and are intended to be restricted. Here the expression “claim
of set-off” does not disclose a category or a genus. Set-offs are
of two kinds — legal and equitable — and both are already
comprehended and it is difficult to think of any right “arising from
a contract” which is of the same nature as a claim of set-off and
F
can be raised by a defendant in a suit. Mr B.C. Misra, whom we
invited to give us examples, admitted frankly that it was impossible
for him to think of any proceeding of the nature of a claim of set-
off other than a claim of set-off which could be raised in a suit
such as is described in the second sub-section. In respect of the
G first sub-section he could give only two examples. They are (i) a
claim by a pledger of goods-with an unregistered firm whose good
are attached and who has to make an objection under Order 21
Rule 58 of the Code of Civil Procedure and (ii) proving a debt
before a liquidator. The latter is not raised as a defence and cannot
belong to the same genus as a “claim of set-off”. The former can
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 237
[R. F. NARIMAN, J.]

be made to fit but by a stretch of some considerable imagination. A
It is difficult for us to accept that the legislature was thinking of
such far-fetched things when it spoke of “other proceeding”
ejusdem generis with a claim of set-off.”
(at pages 56-57)
B
“In our judgment, the words “other proceeding” in sub-
section (3) must receive their full meaning untrammelled by the
words “a claim of set-off”. The latter words neither intend nor
can be construed to cut down the generality of the words “other
proceeding”. The sub-section provides for the application of the
provisions of sub-sections (1) and (2) to claims of set-off and also C
to other proceedings of any kind which can properly be said to be
for enforcement of any right arising from contract except those
expressly mentioned as exceptions in sub-section (3) and sub-
section (4).”
(at page 60) D
17. Likewise, in Rajasthan State Electricity Board v. Mohan
Lal, (1967) 3 SCR 377, this Court had to decide whether the expression
“other authorities” in Article 12 of the Constitution of India took its colour
from the preceding expressions used in the said Article, making such
authorities only those authorities who exercised governmental power. E
This was emphatically turned down by a Constitution Bench of this Court,
stating:
“In our opinion, the High Courts fell into an error in applying
the principle of ejusdem generis when interpreting the expression
“other authorities” in Article 12 of the Constitution, as they F
overlooked the basic principle of interpretation that, to invoke the
application of ejusdem generis rule, there must be a distinct genus
or category running through the bodies already named. Craies on,
Statute Law summarises the principle as follows:
“The ejusdem generis rule is one to be applied with caution G
and not pushed too far…. To invoke the application of the
ejusdem generis rule there must be a distinct genus or category.
The specific words must apply not to different objects of a
widely differing character but to something which can be called
a class or kind of objects. Where this is lacking, the rule cannot H
238 SUPREME COURT REPORTS [2021] 14 S.C.R.

A apply, but the mention of a single species does not constitute a
genus [Craies on Statute Law, 6th Edn, p 181].”
Maxwell in his book on ‘Interpretation of Statutes’
explained the principle by saying: “But the general word which
follows particular and specific words of the same nature as itself
B takes its meaning from them, and is presumed to be restricted to
the same genus as those words …. Unless there is a genus or
category, there is no room for the application of the ejusdem
generis doctrine [Maxwell on Interpretation of Statutes, 11th
Edn pp. 326, 327]”. In United Towns Electric Co., Ltd. v.
Attorney-General for Newfoundland [(1939) I AER 423] , the
C Privy Council held that, in their opinion, there is no room for the
application of the principle of ejusdem generis in the absence of
any mention of a genus, since the mention of a single species —
for example, water rates — does not constitute a genus. In Article
12 of the Constitution, the bodies specifically named are the
D Executive Governments of the Union and the States, the
Legislatures of the Union and the States, and local authorities.
We are unable to find any common genus running through these
named bodies, nor can these bodies be placed in one single
category on any rational basis. The doctrine of ejusdem generis
could not, therefore, be, applied to the interpretation of the
E expression “other authorities” in this article.
The meaning of the word “authority” given in Webster’s
Third New International Dictionary, which can be applicable,
is a public administrative agency or corporation having quasi-
governmental powers and authorised to administer a revenue-
F producing public enterprise. This dictionary meaning of the word
“authority” is clearly wide enough to include all bodies created by
a statute on which powers are conferred to carry out governmental
or quasi-governmental functions. The expression “other
authorities” is wide enough to include within it every authority
G created by a statute and functioning within the territory of India,
or under the control of the Government of India; and we do not
see any reason to narrow down this meaning in the context in
which the words “other authorities” are used in Article 12 of the
Constitution.”

H (at pages 384-385)
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 239
[R. F. NARIMAN, J.]

18. In CBI v. Braj Bhushan Prasad, (2001) 9 SCC 432, this A
Court was asked to construe Section 89 of the Bihar Reorganisation Act
with reference to noscitur a sociis. In turning this down, this Court
held:
“26. We pointed out the above different shades of meanings in
order to determine as to which among them has to be chosen for B
interpreting the said word falling in Section 89 of the Act. The
doctrine of noscitur a sociis (meaning of a word should be known
from its accompanying or associating words) has much relevance
in understanding the import of words in a statutory provision. The
said doctrine has been resorted to with advantage by this Court in
a number of cases vide Bangalore Water Supply & Sewerage C
Board v. A. Rajappa [(1978) 2 SCC 213 : 1978 SCC (L&S)
215], Rohit Pulp and Paper Mills Ltd. v. CCE [(1990) 3 SCC
447], Oswal Agro Mills Ltd. v. CCE [1993 Supp (3) SCC 716],
K. Bhagirathi G. Shenoy v. K.P. Ballakuraya [(1999) 4 SCC
135] and Lokmat Newspapers (P) Ltd. v. Shankarprasad [(1999) D
6 SCC 275 : 1999 SCC (L&S) 1090].
27. If so, we have to gauge the implication of the words “proceeding
relating exclusively to the territory” from the surrounding context.
Section 89 of the Act says that proceeding pending prior to the
appointed day before “a court (other than the High Court), tribunal, E
authority or officer” shall stand transferred to the “corresponding
court, tribunal, authority or officer” of Jharkhand State. A very
useful index is provided in the Section by defining the words
“corresponding court, tribunal, authority or officer in the State of
Jharkhand” as this: [Section 89(3)(b)(i)]
F
“The court, tribunal, authority or officer in which, or before
whom, the proceeding would have laid if it had been instituted
after the appointed day;”
28. Look at the words “would have laid if it had been instituted
after the appointed day”. In considering the question as to where G
the proceeding relating to the 36 cases involved in these appeals
would have laid, had they been instituted after the appointed day,
we have absolutely no doubt that the meaning of the word
“exclusively” should be understood as “substantially all or for the
greater part or principally”.
H
240 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 29. We cannot overlook the main object of Section 89 of the Act.
It must not be forgotten that transfer of criminal cases is not the
only subject covered by the Section. The provision seeks to allocate
the files or records relating to all proceedings, after the bifurcation
if they were to be instituted after the appointed day. Any
interpretation should be one which achieves that object and not
B
that which might create confusion or perplexity or even
bewilderment to the officers of the respective States. In other
words, the interpretation should be made with pragmatism, not
pedantically or in a stilted manner. For the purpose of criminal
cases, we should bear in mind the subject-matter of the case to
C be transferred. When so considering, we have to take into account
further that all the 36 cases are primarily for the offences under
the PC Act and hence they are all triable before the Courts of
Special Judges. Hence, the present question can be determined
by reference to the provisions of the PC Act.”
D 19. In Godfrey Phillips India Ltd. v. State of U.P., (2005) 2
SCC 515, a Constitution Bench of this Court had to construe the meaning
of the expression “luxury” in Entry 62 of List 2 of the Seventh Schedule
to the Constitution of India. In this context, the rule of noscitur a sociis
was applied by the Court, the Court also pointing out how a court must
be careful before blindly applying the principle, as follows:
E
“77. In the present context the general meaning of “luxury” has
been explained or clarified and must be understood in a sense
analogous to that of the less general words such as entertainments,
amusements, gambling and betting, which are clubbed with it. This
principle of interpretation known as “noscitur a sociis” has
F
received approval in Rainbow Steels Ltd. v. CST [(1981) 2 SCC
141 : 1981 SCC (Tax) 90] , SCC at p. 145 although doubted in its
indiscriminate application in State of Bombay v. Hospital Mazdoor
Sabha [(1960) 2 SCR 866 : AIR 1960 SC 610] . In the latter case
this Court was required to construe Section 2(j) of the Industrial
G Disputes Act which read:
“2(j) ‘industry’ means any business, trade, undertaking,
manufacture or calling of employers and includes any calling,
service, employment, handicraft, or industrial occupation or
avocation of workmen.”
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 241
[R. F. NARIMAN, J.]

78. It was found that the words in the definition were of very A
wide and definite import. It was suggested that these words should
be read in a restricted sense having regard to the included items
on the principle of “noscitur a sociis”. The suggestion was
rejected in the following language: (Hospital Mazdoor Sabha
case [(1960) 2 SCR 866 : AIR 1960 SC 610] , SCR p. 874)
B
“It must be borne in mind that noscitur a sociis is merely a
rule of construction and it cannot prevail in cases where it is
clear that the wider words have been deliberately used in order
to make the scope of the defined word correspondingly
wider. It is only where the intention of the legislature in
associating wider words with words of narrower C
significance is doubtful, or otherwise not clear that the
present rule of construction can be usefully applied. It can
also be applied where the meaning of the words of wider
import is doubtful; but, where the object of the legislature in
using wider words is clear and free of ambiguity, the rule of D
construction in question cannot be pressed into service.” (AIR
p. 614, para 9)
(emphasis in original)
79. We do not read this passage as excluding the application of
the principle of noscitur a sociis to the present case since it has E
been amply demonstrated with reference to authority that the
meaning of the word “luxury” in Entry 62 is doubtful and has
been defined and construed in different senses.
xxx xxx xxx
F
81. We are aware that the maxim of noscitur a sociis may be a
treacherous one unless the “societas” to which the “socii” belong,
are known. The risk may be present when there is no other factor
except contiguity to suggest the “societas”. But where there is,
as here, a term of wide denotation which is not free from ambiguity,
the addition of the words such as “including” is sufficiently G
indicative of the societas. As we have said, the word “includes”
in the present context indicates a commonality or shared features
or attributes of the including word with the included.
xxx xxx xxx
H
242 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 83. Hence on an application of general principles of interpretation,
we would hold that the word “luxuries” in Entry 62 of List II
means the activity of enjoyment of or indulgence in that which is
costly or which is generally recognised as being beyond the
necessary requirements of an average member of society and
not articles of luxury.”
B
20. In Vikram Singh v. Union of India, (2015) 9 SCC 502, this
Court was asked to construe the expression “government or any other
person” contained in Section 364-A of the Indian Penal Code, 1860 with
reference to ejusdem generis. This Court, in repelling the contention,
went on to hold:
C
“26. We may before parting with this aspect of the matter also
deal with the argument that the expression “any other person”
appearing in Section 364-A IPC ought to be read ejusdem generis
with the expression preceding the said words. The argument needs
notice only to be rejected. The rule of ejusdem generis is a rule of
D construction and not a rule of law. Courts have to be very careful
in applying the rule while interpreting statutory provisions. Having
said that the rule applies in situations where specific words forming
a distinct genus class or category are followed by general words.
The first stage of any forensic application of the rule, therefore,
E has to be to find out whether the preceding words constitute a
genus class or category so that the general words that follow
them can be given the same colour as the words preceding. In
cases where it is not possible to find the genus in the use of the
words preceding the general words, the rule of ejusdem generis
will have no application.
F
27. In Siddeshwari Cotton Mills (P) Ltd. v. Union of India
[(1989) 2 SCC 458 : 1989 SCC (Tax) 297] M.N. Venkatachaliah,
J., as His Lordship then was, examined the rationale underlying
ejusdem generis as a rule of construction and observed: (SCC p.
463, para 14)
G “14. The principle underlying this approach to statutory
construction is that the subsequent general words were only
intended to guard against some accidental omission in the
objects of the kind mentioned earlier and were not intended to
extend to objects of a wholly different kind. This is a
H presumption and operates unless there is some contrary
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 243
[R. F. NARIMAN, J.]

indication. But the preceding words or expressions of restricted A
meaning must be susceptible of the import that they represent
a class. If no class can be found, ejusdem generis rule is not
attracted and such broad construction as the subsequent words
may admit will be favoured. As a learned author puts it:
‘… if a class can be found, but the specific words B
exhaust the class, then rejection of the rule may be favoured
because its adoption would make the general words
unnecessary; if, however, the specific words do not exhaust
the class, then adoption of the rule may be favoured because
its rejection would make the specific words unnecessary.’
[See: Construction of Statutes by E.A. Driedger p. 95 quoted C
by Francis Bennion in his Statutory Construction, pp. 829 and
830.]”
28. Relying upon the observations made by Francis Bennion in
his Statutory Construction and English decision in Magnhild v.
McIntyre Bros. & Co. [(1920) 3 KB 321] and those rendered by D
this Court in Tribhuban Parkash Nayyar v. Union of
India [(1969) 3 SCC 99], U.P. SEB v. Hari Shankar Jain [(1978)
4 SCC 16 : 1978 SCC (L&S) 481], His Lordship summed up the
legal principle in the following words: (Siddeshwari Cotton Mills
case [(1989) 2 SCC 458 : 1989 SCC (Tax) 297], SCC p. 464, E
para 19)
“19. The preceding words in the statutory provision which,
under this particular rule of construction, control and limit the
meaning of the subsequent words must represent a genus or a
family which admits of a number of species or members. If F
there is only one species it cannot supply the idea of a genus.”
29. Applying the above to the case at hand, we find that Section
364-A added to IPC made use of only two expressions viz.
“Government” or “any other person”. Parliament did not use
multiple expressions in the provision constituting a distinct genus G
class or category. It used only one single expression viz.
“Government” which does not constitute a genus, even when it
may be a specie. The situation, at hand, is somewhat similar to
what has been enunciated in Craies on Statute Law (7th Edn.) at
pp. 181-82 in the following passage:
H
244 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “… The modern tendency of the law, it was said [by Asquith, J.
in Allen v. Emerson (1944 KB 362 : (1944) 1 All ER 344)], is
‘to attenuate the application of the rule of ejusdem generis’. To
invoke the application of the ejusdem generis rule there must be
a distinct genus or category. The specific words must apply not
to different objects of a widely differing character but to
B
something which can be called a class or kind of objects. Where
this is lacking, the rule cannot apply (Hood-Barrs v. IRC [(1946)
2 All ER 768 (CA)]), but the mention of a single species does
not constitute a genus. (Per Lord Thankerton in United Towns
Electric Co. Ltd. v. Attorney General for Newfoundland
C [(1939) 1 All ER 423 (PC)].) ‘Unless you can find a category’,
said Farwell L.J. (Tillmanns and Co. v. S.S. Knutsford Ltd.
[(1908) 2 KB 385 (CA)] ), ‘there is no room for the application
of the ejusdem generis doctrine’, and where the words are clearly
wide in their meaning they ought not to be qualified on the ground
of their association with other words. For instance, where a
D
local Act required that ‘theatres and other places of public
entertainment’ should be licensed, the question arose whether a
‘fun-fair’ for which no fee was charged for admission was within
the Act. It was held to be so, and that the ejusdem generis rule
did not apply to confine the words ‘other places’ to places of the
E same kind as theatres. So the insertion of such words as ‘or
things of whatever description’ would exclude the rule. (Attorney
General v. Leicester Corpn. [(1910) 2 Ch 359 : (1908-10) All
ER Rep Ext 1002] ) In National Assn. of Local Govt. Officers
v. Bolton Corpn. [1943 AC 166 : (1942) 2 All ER 425 (HL)]
Lord Simon L.C. referred to a definition of ‘workman’ as any
F
person who has entered into a works under a contract with an
employer whether the contract be by way of manual labour,
clerical work ‘or otherwise’ and said: ‘The use of the words “or
otherwise” does not bring into play the ejusdem generis principle:
for “manual labour” and “clerical work” do not belong to a single
G limited genus’ and Lord Wright in the same case said: ‘The
ejusdem generis rule is often useful or convenient, but it is
merely a rule of construction, not a rule of law. In the present
case it is entirely inapt. It presupposes a “genus” but here
the only “genus” is a contract with an employer’.
(emphasis supplied)
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 245
[R. F. NARIMAN, J.]

30. The above passage was quoted with approval by this Court A
in Grasim Industries Ltd. v. Collector of Customs [(2002) 4 SCC
297] holding that Note 1(a) of Chapter 84 relevant to that case
was clear and unambiguous. It did not speak of a class, category
or genus followed by general words making the rule of ejusdem
generis inapplicable.”
B
xxx xxx xxx
“32. This would mean that the term “person” appearing in Section
364-A IPC would include a company or association or body of
persons whether incorporated or not, apart from natural persons.
The tenor of the provision, the context and the statutory definition C
of the expression “person” all militate against any attempt to
restrict the meaning of the term “person” to the “Government”
or “foreign State” or “international inter-governmental
organisations” only.”
21. In Pioneer Urban Land and Infrastructure Ltd. v. Union D
of India, (2019) 8 SCC 416, this Court laid down the limits of the
application of the rule of construction that is contained in the expression
“noscitur a sociis” as follows:
“84. It was then argued, relying on a large number of judgments
that Section 5(8)(f) must be construed noscitur a sociis with clauses E
(a) to (e) and (g) to (i), and so construed would only refer to loans
or other financial transactions which would involve money at both
ends. This, again, is not correct in view of the fact that Section
5(8)(f) is clearly a residuary “catch all” provision, taking within it
matters which are not subsumed within the other sub-clauses.
Even otherwise, in CED v. Kantilal Trikamlal [CED v. Kantilal F
Trikamlal, (1976) 4 SCC 643 : 1977 SCC (Tax) 90] , this Court
has held that when an expression is a residuary one, ejusdem
generis will not apply. It was thus held: (SCC p. 655, para 21)
“21. … We have also to stress the expression “other right” in
the explanation which is of the widest import and cannot be G
constricted by reading it ejusdem generis with “debt”. “Other
right”, in the context, is expressly meant considerably to widen
the concept and therefore suggests a somewhat contrary
intention to the application of the ejusdem generis rule. We
may derive instruction from Green’s construction of the identical
H
246 SUPREME COURT REPORTS [2021] 14 S.C.R.

A expression in the English Act. [Section 45(2)]. The learned
author writes:
‘A disclaimer is an extinguishment of a right for this
purpose. Although in the event the person disclaiming never
has any right in the property, he has the right to obtain it, this
B inchoate right is a “right” for the purposes of Section 45(2).
The ejusdem generis rule does not apply to the words “a debt
or other right” and the word “right” is a word of the widest
import. Moreover, the expression “at the expense of the
deceased” is used in an ordinary and natural manner; and is
apt to cover not only cases where the extinguishment involves
C a loss to the deceased of a benefit he already enjoyed, but also
those where it prevents him from acquiring the benefit.’”
85. Also, in Subramanian Swamy v. Union of India
[Subramanian Swamy v. Union of India, (2016) 7 SCC 221 :
(2016) 3 SCC (Cri) 1], this Court held: (SCC pp. 291-93, paras
D 70-74)
“70. The other aspect that is being highlighted in the context
of Article 19(2) is that defamation even if conceived of to include
a criminal offence, it must have the potentiality to “incite to
cause an offence”. To elaborate, the submission is the words
E “incite to cause an offence” should be read to give attributes
and characteristics of criminality to the word “defamation”. It
must have the potentiality to lead to breach of peace and public
order. It has been urged that the intention of clause (2) of
Article 19 is to include a public law remedy in respect of a
F grievance that has a collective impact but not as an actionable
claim under the common law by an individual and, therefore,
the word “defamation” has to be understood in that context, as
the associate words are “incitement to an offence” would so
warrant. Mr Rao, learned Senior Counsel, astutely canvassed
that unless the word “defamation” is understood in this manner
G applying the principle of noscitur a sociis, the cherished and
natural right of freedom of speech and expression which has
been recognised under Article 19(1)(a) would be absolutely at
peril. Mr Narasimha, learned ASG would contend that the said
rule of construction would not be applicable to understand the
H meaning of the term “defamation”. Be it noted, while construing
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 247
[R. F. NARIMAN, J.]

the provision of Article 19(2), it is the duty of the Court to keep A
in view the exalted spirit, essential aspects, the value and
philosophy of the Constitution. There is no doubt that the
principle of noscitur a sociis can be taken recourse to in order
to understand and interpret the Constitution but while applying
the principle, one has to keep in mind the contours and scope
B
of applicability of the said principle.
71. In State of Bombay v. Hospital Mazdoor Sabha [State
of Bombay v. Hospital Mazdoor Sabha, AIR 1960 SC 610 :
(1960) 2 SCR 866] , it has been held that it must be borne in
mind that noscitur a sociis is merely a rule of construction
and it cannot prevail in cases where it is clear that wider words C
have been deliberately used in order to make the scope of the
defined word correspondingly wider. It is only where the
intention of the legislature in associating wider words with words
of narrower significance is doubtful, or otherwise not clear
that the said rule of construction can be usefully applied. It can D
also be applied where the meaning of the words of wider import
is doubtful; but, where the object of the legislature in using
wider words is clear and free of ambiguity, the rule of
construction in question cannot be pressed into service.
72. In Bank of India v. Vijay Transport [Bank of India v. E
Vijay Transport, 1988 Supp SCC 47] , the Court was dealing
with the contention that a literal interpretation is not always
the only interpretation of a provision in a statute and the court
has to look at the setting in which the words are used and the
circumstances in which the law came to be passed to decide
whether there is something implicit behind the words actually F
used which would control the literal meaning of the words used.
For the said purpose, reliance was placed on R.L. Arora v.
State of U.P. [R.L. Arora v. State of U.P., (1964) 6 SCR 784
: AIR 1964 SC 1230] Dealing with the said aspect, the Court
has observed thus: (Vijay Transport case [Bank of G
India v. Vijay Transport, 1988 Supp SCC 47], SCC p. 51,
para 11)
‘11. … It may be that in interpreting the words of the
provision of a statute, the setting in which such words are
placed may be taken into consideration, but that does not H
248 SUPREME COURT REPORTS [2021] 14 S.C.R.

A mean that even though the words which are to be
interpreted convey a clear meaning, still a different
interpretation or meaning should be given to them because
of the setting. In other words, while the setting of the
words may sometimes be necessary for the interpretation
of the words of the statute, but that has not been ruled by
B
this Court to be the only and the surest method of
interpretation.’
73. The Constitution Bench, in Godfrey Phillips (India) Ltd.
v. State of U.P. [Godfrey Phillips (India) Ltd. v. State of
U.P., (2005) 2 SCC 515], while expressing its opinion on the
C aforesaid rule of construction, opined: (SCC pp. 550 & 551,
paras 81 & 83)
‘81. We are aware that the maxim of noscitur a sociis may
be a treacherous one unless the “societas” to which the
“socii” belong, are known. The risk may be present when
D there is no other factor except contiguity to suggest the
“societas”. But where there is, as here, a term of wide
denotation which is not free from ambiguity, the addition of
the words such as “including” is sufficiently indicative of
the societas. As we have said, the word “includes” in the
E present context indicates a commonality or shared features
or attributes of the including word with the included.
***
83. Hence on an application of general principles of
interpretation, we would hold that the word “luxuries” in
F Entry 62 of List II means the activity of enjoyment of or
indulgence in that which is costly or which is generally
recognised as being beyond the necessary requirements of
an average member of society and not articles of luxury.’
74. At this juncture, we may note that in Ahmedabad Private
G Primary Teachers’ Assn. v. Administrative Officer
[Ahmedabad Private Primary Teachers’ Assn. v. Administrative
Officer, (2004) 1 SCC 755 : 2004 SCC (L&S) 306], it has
been stated that noscitur a sociis is a legitimate rule of
construction to construe the words in an Act of Parliament
with reference to the words found in immediate connection
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 249
[R. F. NARIMAN, J.]

with them. In this regard, we may refer to a passage from A
Justice G.P. Singh, Principles of Statutory Interpretation
[(13th Edn., 2012) 509.] where the learned author has referred
to the lucid explanation given by Gajendragadkar, J. We think
it appropriate to reproduce the passage:
‘It is a rule wider than the rule of ejusdem generis; rather B
the latter rule is only an application of the former. The rule
has been lucidly explained by Gajendragadkar, J. in the
following words:
“This rule, according to Maxwell [Maxwell, Interpretation
of Statutes (11th Edn., 1962) 321.] , means that when two C
or more words which are susceptible of analogous meaning
are coupled together, they are understood to be used in their
cognate sense. They take as it were their colour from each
other, that is, the more general is restricted to a sense
analogous to a less general.”’
D
The learned author on further discussion has expressed the
view that meaning of a word is to be judged from the
company it keeps i.e. reference to words found in immediate
connection with them. It applies when two or more words
are susceptible of analogous meanings are coupled together,
E
to be read and understood in their cognate sense. [G.P. Singh,
Principles of Statutory Interpretation (8th Edn.) 379.]
Noscitur a sociis is merely a rule of construction and cannot
prevail where it is clear that wider and diverse etymology
is intentionally and deliberately used in the provision. It is
only when and where the intention of the legislature in F
associating wider words with words of narrowest
significance is doubtful or otherwise not clear, that the rule
of noscitur a sociis is useful.”
86. It is clear from a reading of these judgments that noscitur a
sociis being a mere rule of construction cannot be applied in the G
present case as it is clear that wider words have been deliberately
used in a residuary provision, to make the scope of the definition
of “financial debt” subsume matters which are not found in the
other sub-clauses of Section 5(8). This contention must also,
therefore, be rejected.”
H
250 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 22. A reading of these judgments would show that ejusdem generis
and noscitur a sociis, being rules as to the construction of statutes,
cannot be exalted to nullify the plain meaning of words used in a statute
if they are designedly used in a wide sense. Importantly, where a
residuary phrase is used as a catch-all expression to take within its scope
what may reasonably be comprehended by a provision, regard being
B
had to its object and setting, noscitur a sociis cannot be used to colour
an otherwise wide expression so as to whittle it down and stultify the
object of a statutory provision.
OBJECT OF SECTION 14 OF THE IBC
C 23. This then brings us to the object sought to be achieved by
Section 14 of the IBC. The Report of the Insolvency Law Committee of
February, 2020 throws some light on Section 14. Paragraphs 8.2 and
8.11 thereof read as follows:
“8.2. The moratorium under Section 14 is intended to keep the
D corporate debtor’s assets together during the insolvency resolution
process and facilitating orderly completion of the processes
envisaged during the insolvency resolution process and ensuring
that the company may continue as a going concern while the
creditors take a view on resolution of default. Keeping the
corporate debtor running as a going concern during the CIRP
E helps in achieving resolution as a going concern as well, which is
likely to maximize value for all stakeholders. In other jurisdictions
too, a moratorium may be put in place on the advent of formal
insolvency proceedings, including liquidation and reorganization
proceedings. The UNCITRAL Guide notes that a moratorium is
F critical during reorganization proceedings since it facilitates the
continued operation of the business and allows the debtor a
breathing space to organize its affairs, time for preparation and
approval of a reorganization plan and for other steps such as
shedding unprofitable activities and onerous contracts, where
appropriate.”
G
xxx xxx xxx
“8.11. Further, the purpose of the moratorium is to keep the assets
of the debtor together for successful insolvency resolution, and it
does not bar all actions, especially where countervailing public
policy concerns are involved. For instance, criminal proceedings
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 251
[R. F. NARIMAN, J.]

are not considered to be barred by the moratorium, since they do A
not constitute “money claims or recovery” proceedings. In this
regard, the Committee also noted that in some jurisdictions, laws
allow regulatory claims, such as those which are not designed to
collect money for the estate but to protect vital and urgent public
interests, restraining activities causing environmental damage or
B
activities that are detrimental to public health and safety to be
continued during the moratorium period.”
It can be seen that paragraph 8.11 refers to the very judgment
under appeal before us, and cannot therefore be said to throw any light
on the correct position in law which has only to be finally settled by this
Court. However, paragraph 8.2 is important in that the object of a C
moratorium provision such as Section 14 is to see that there is no depletion
of a corporate debtor’s assets during the insolvency resolution process
so that it can be kept running as a going concern during this time, thus
maximising value for all stakeholders. The idea is that it facilitates the
continued operation of the business of the corporate debtor to allow it D
breathing space to organise its affairs so that a new management may
ultimately take over and bring the corporate debtor out of financial
sickness, thus benefitting all stakeholders, which would include workmen
of the corporate debtor. Also, the judgment of this Court in Swiss
Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 states the raison
d’être for Section 14 in paragraph 28 as follows: E

“28. It can thus be seen that the primary focus of the legislation is
to ensure revival and continuation of the corporate debtor by
protecting the corporate debtor from its own management and
from a corporate death by liquidation. The Code is thus a beneficial
legislation which puts the corporate debtor back on its feet, not F
being a mere recovery legislation for creditors. The interests of
the corporate debtor have, therefore, been bifurcated and
separated from that of its promoters/those who are in management.
Thus, the resolution process is not adversarial to the corporate
debtor but, in fact, protective of its interests. The moratorium G
imposed by Section 14 is in the interest of the corporate debtor
itself, thereby preserving the assets of the corporate debtor during
the resolution process. The timelines within which the resolution
process is to take place again protects the corporate debtor’s
assets from further dilution, and also protects all its creditors and
H
252 SUPREME COURT REPORTS [2021] 14 S.C.R.

A workers by seeing that the resolution process goes through as
fast as possible so that another management can, through its
entrepreneurial skills, resuscitate the corporate debtor to achieve
all these ends.”
24. It can thus be seen that regard being had to the object sought
B to be achieved by the IBC in imposing this moratorium, a quasi-criminal
proceeding which would result in the assets of the corporate debtor
being depleted as a result of having to pay compensation which can
amount to twice the amount of the cheque that has bounced would directly
impact the corporate insolvency resolution process in the same manner
as the institution, continuation, or execution of a decree in such suit in a
C civil court for the amount of debt or other liability. Judged from the point
of view of this objective, it is impossible to discern any difference between
the impact of a suit and a Section 138 proceeding, insofar as the corporate
debtor is concerned, on its getting the necessary breathing space to get
back on its feet during the corporate insolvency resolution process. Given
D this fact, it is difficult to accept that noscitur a sociis or ejusdem generis
should be used to cut down the width of the expression “proceedings”
so as to make such proceedings analogous to civil suits.
25. Viewed from another point of view, clause (b) of Section 14(1)
also makes it clear that during the moratorium period, any transfer,
E encumbrance, alienation, or disposal by the corporate debtor of any of
its assets or any legal right or beneficial interest therein being also
interdicted, yet a liability in the form of compensation payable under
Section 138 would somehow escape the dragnet of Section 14(1). While
Section 14(1)(a) refers to monetary liabilities of the corporate debtor,
Section 14(1)(b) refers to the corporate debtor’s assets, and together,
F these two clauses form a scheme which shields the corporate debtor
from pecuniary attacks against it in the moratorium period so that the
corporate debtor gets breathing space to continue as a going concern in
order to ultimately rehabilitate itself. Any crack in this shield is bound to
have adverse consequences, given the object of Section 14, and cannot,
G by any process of interpretation, be allowed to occur.
SECTION 14 IN RELATION TO OTHER MORATORIUM
SECTIONS IN THE IBC
26. Even otherwise, when some of the other provisions as to
moratorium are seen in the context of individuals and firms, the provisions
H of Section 14 become even clearer. Thus, in Part III of the IBC, which
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 253
[R. F. NARIMAN, J.]

deals with insolvency resolution and bankruptcy for individuals and A
partnership firms, Section 81, which occurs in Chapter II thereof, entitled
“Fresh Start Process”, an interim moratorium is imposed thus:
“81. Application for fresh start order.—(1) When an application
is filed under Section 80 by a debtor, an interim-moratorium shall
commence on the date of filing of said application in relation to all B
the debts and shall cease to have effect on the date of admission
or rejection of such application, as the case may be.
(2) During the interim-moratorium period,—
(i) any legal action or legal proceeding pending in respect
of any of his debts shall be deemed to have been C
stayed; and
(ii) no creditor shall initiate any legal action or
proceedings in respect of such debt.
(3) The application under Section 80 shall be in such form and
manner and accompanied by such fee, as may be prescribed. D
(4) The application under sub-section (3) shall contain the following
information supported by an affidavit, namely—
(a) a list of all debts owed by the debtor as on the date
of the said application along with details relating to
the amount of each debt, interest payable thereon E
and the names of the creditors to whom each debt is
owed;
(b) the interest payable on the debts and the rate thereof
stipulated in the contract;
F
(c) a list of security held in respect of any of the debts;
(d) the financial information of the debtor and his
immediate family up to two years prior to the date of
the application;
(e) the particulars of the debtor’s personal details, as G
may be prescribed;
(f) the reasons for making the application;
(g) the particulars of any legal proceedings which, to the
debtor’s knowledge has been commenced against
him; H
254 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (h) the confirmation that no previous fresh start order
under this Chapter has been made in respect of the
qualifying debts of the debtor in the preceding twelve
months of the date of the application.”
Similarly, in Section 85, which also occurs in Chapter II in Part III
B of the IBC, a moratorium is imposed thus:
“85. Effect of admission of application.—(1) On the date of
admission of the application, the moratorium period shall
commence in respect of all the debts.
(2) During the moratorium period—
C
(a) any pending legal action or legal proceeding in respect
of any debt shall be deemed to have been stayed;
and
(b) subject to the provisions of Section 86, the creditors
D shall not initiate any legal action or proceedings in
respect of any debt.
(3) During the moratorium period, the debtor shall—
(a) not act as a director of any company, or directly or
indirectly take part in or be concerned in the
E
promotion, formation or management of a company;
(b) not dispose of or alienate any of his assets;
(c) inform his business partners that he is undergoing a
fresh start process;
F (d) be required to inform prior to entering into any
financial or commercial transaction of such value as
may be notified by the Central Government, either
individually or jointly, that he is undergoing a fresh
start process;
G (e) disclose the name under which he enters into business
transactions, if it is different from the name in the
application admitted under Section 84;
(f) not travel outside India except with the permission
of the Adjudicating Authority.
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 255
[R. F. NARIMAN, J.]

(4) The moratorium ceases to have effect at the end of the period A
of one hundred and eighty days beginning with the date of
admission unless the order admitting the application is revoked
under sub-section (2) of Section 91.”
27. When the language of Section 14 and Section 85 are contrasted,
it becomes clear that though the language of Section 85 is only in respect B
of debts, the moratorium contained in Section 14 is not subject specific.
The only light thrown on the subject is by the exception provision contained
in Section 14(3)(a) which is that “transactions” are the subject matter of
Section 14(1). “Transaction” is, as we have seen, a much wider expression
than “debt”, and subsumes it. Also, the expression “proceedings” used
by the legislature in Section 14(1)(a) is not trammelled by the word “legal” C
as a prefix that is contained in the moratorium provisions qua individuals
and firms. Likewise, the provisions of Section 96 and Section 101 are
moratorium provisions in Chapter III of Part III dealing with the insolvency
resolution process of individuals and firms, the same expression, namely,
“debts” is used as is used in Section 85. Sections 96 and 101 read as D
follows:
“96. Interim-moratorium.—(1) When an application is filed
under Section 94 or Section 95—
(a) an interim-moratorium shall commence on the date
of the application in relation to all the debts and shall E
cease to have effect on the date of admission of such
application; and
(b) during the interim-moratorium period—
(i) any legal action or proceeding pending in
respect of any debt shall be deemed to have F
been stayed; and
(ii) the creditors of the debtor shall not initiate any
legal action or proceedings in respect of any
debt.
(2) Where the application has been made in relation to a firm, the G
interim-moratorium under sub-section (1) shall operate against all
the partners of the firm as on the date of the application.
(3) The provisions of sub-section (1) shall not apply to such
transactions as may be notified by the Central Government in
consultation with any financial sector regulator.” H
256 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “101. Moratorium.—(1) When the application is admitted under
Section 100, a moratorium shall commence in relation to all the
debts and shall cease to have effect at the end of the period of
one hundred and eighty days beginning with the date of admission
of the application or on the date the Adjudicating Authority passes
an order on the repayment plan under Section 114, whichever is
B
earlier.
(2) During the moratorium period—
(a) any pending legal action or proceeding in respect of
any debt shall be deemed to have been stayed;
C (b) the creditors shall not initiate any legal action or legal
proceedings in respect of any debt; and
(c) the debtor shall not transfer, alienate, encumber or
dispose of any of his assets or his legal rights or
beneficial interest therein;
D
(3) Where an order admitting the application under Section 96
has been made in relation to a firm, the moratorium under sub-
section (1) shall operate against all the partners of the firm.
(4) The provisions of this Section shall not apply to such transactions
as may be notified by the Central Government in consultation
E
with any financial sector regulator.”
A legal action or proceeding in respect of any debt would, on its
plain language, include a Section 138 proceeding. This is for the reason
that a Section 138 proceeding would be a legal proceeding “in respect
of” a debt. “In respect of” is a phrase which is wide and includes anything
F
done directly or indirectly – see Macquarie Bank Ltd. v. Shilpi Cable
Technologies Ltd., (2018) 2 SCC 674 (at page 709) and Giriraj Garg
v. Coal India Ltd., (2019) 5 SCC 192 (at pages 202-203). This, coupled
with the fact that the Section is not limited to ‘recovery’ of any debt,
would indicate that any legal proceeding even indirectly relatable to
G recovery of any debt would be covered.
28. When the language of these Sections is juxtaposed against
the language of Section 14, it is clear that the width of Section 14 is even
greater, given that Section 14 declares a moratorium prohibiting what is
mentioned in clauses (a) to (d) thereof in respect of transactions entered
H into by the corporate debtor, inclusive of transactions relating to debts,
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 257
[R. F. NARIMAN, J.]

as is contained in Sections 81, 85, 96, and 101. Also, Section 14(1)(d) is A
conspicuous by its absence in any of these Sections. Thus, where
individuals or firms are concerned, the recovery of any property by an
owner or lessor, where such property is occupied by or in possession of
the individual or firm can be recovered during the moratorium period,
unlike the property of a corporate debtor. For all these reasons, therefore,
B
given the object and context of Section 14, the expression “proceedings”
cannot be cut down by any rule of construction and must be given a fair
meaning consonant with the object and context. It is conceded before us
that criminal proceedings which are not directly related to transactions
evidencing debt or liability of the corporate debtor would be outside the
scope of this expression. C
29. V. Ramakrishnan (supra) looked at and contrasted Section
14 with Sections 96 and 101 from the point of view of a guarantor to a
debt, and in this context, held:
“26. We are also of the opinion that Sections 96 and 101, when
contrasted with Section 14, would show that Section 14 cannot D
possibly apply to a personal guarantor. When an application is
filed under Part III, an interim-moratorium or a moratorium is
applicable in respect of any debt due. First and foremost, this is a
separate moratorium, applicable separately in the case of personal
guarantors against whom insolvency resolution processes may be E
initiated under Part III. Secondly, the protection of the moratorium
under these Sections is far greater than that of Section 14 in that
pending legal proceedings in respect of the debt and not the debtor
are stayed. The difference in language between Sections 14 and
101 is for a reason.
F
26.1. Section 14 refers only to debts due by corporate debtors,
who are limited liability companies, and it is clear that in the vast
majority of cases, personal guarantees are given by Directors
who are in management of the companies. The object of the Code
is not to allow such guarantors to escape from an independent
and co-extensive liability to pay off the entire outstanding debt, G
which is why Section 14 is not applied to them. However, insofar
as firms and individuals are concerned, guarantees are given in
respect of individual debts by persons who have unlimited liability
to pay them. And such guarantors may be complete strangers to
the debtor — often it could be a personal friend. It is for this H
258 SUPREME COURT REPORTS [2021] 14 S.C.R.

A reason that the moratorium mentioned in Section 101 would cover
such persons, as such moratorium is in relation to the debt and not
the debtor.”
These observations, when viewed in context, are correct.
However, this case is distinguishable in that the difference between these
B provisions and Section 14 was not examined qua moratorium provisions
as a whole in relation to corporate debtors vis-à-vis individuals/firms.
THE INTERPLAY BETWEEN SECTION 14 AND
SECTION 32A OF THE IBC
30. Shri Mehta, however, strongly relied upon Section 32A(1) of
C the IBC, which was introduced by the Insolvency and Bankruptcy Code
(Amendment) Act, 2020, to argue that the first proviso to Section 32A(1)
would make it clear that “prosecutions” that had been instituted during
the corporate insolvency resolution process against a corporate debtor
will result in a discharge of the corporate debtor from the prosecution,
D subject to the other requirements of sub-section (1) having been fulfilled.
According to him, therefore, a prosecution of the corporate debtor under
Section 138/141 of the Negotiable Instruments Act can be instituted
during the corporate insolvency resolution process, making it clear that
such prosecutions are, therefore, outside the ken of the moratorium
provisions contained in Section 14 of the IBC. Section 32A(1) of the
E IBC reads as follows:
“32A. Liability for prior offences, etc.—(1) Notwithstanding
anything to the contrary contained in this Code or any other law
for the time being in force, the liability of a corporate debtor for
an offence committed prior to the commencement of the corporate
F insolvency resolution process shall cease, and the corporate debtor
shall not be prosecuted for such an offence from the date the
resolution plan has been approved by the Adjudicating Authority
under Section 31, if the resolution plan results in the change in the
management or control of the corporate debtor to a person who
G was not—
(a) a promoter or in the management or control of the
corporate debtor or a related party of such a person;
or
(b) a person with regard to whom the relevant
H investigating authority has, on the basis of material in
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 259
[R. F. NARIMAN, J.]

its possession, reason to believe that he had abetted A
or conspired for the commission of the offence, and
has submitted or filed a report or a complaint to the
relevant statutory authority or Court:
Provided that if a prosecution had been instituted during
the corporate insolvency resolution process against such corporate B
debtor, it shall stand discharged from the date of approval of the
resolution plan subject to requirements of this sub-section having
been fulfilled:
Provided further that every person who was a “designated
partner” as defined in clause (j) of Section 2 of the Limited Liability C
Partnership Act, 2008 (6 of 2009), or an “officer who is in default”,
as defined in clause (60) of Section 2 of the Companies Act, 2013
(18 of 2013), or was in any manner incharge of, or responsible to
the corporate debtor for the conduct of its business or associated
with the corporate debtor in any manner and who was directly or
indirectly involved in the commission of such offence as per the D
report submitted or complaint filed by the investigating authority,
shall continue to be liable to be prosecuted and punished for such
an offence committed by the corporate debtor notwithstanding
that the corporate debtor’s liability has ceased under this sub-
section. E
xxx xxx xxx”
31. The raison d’être for the enactment of Section 32A has been
stated by the Report of the Insolvency Law Committee of February,
2020, which is as follows:
F
“17. LIABILITY OF CORPORATE DEBTOR FOR
OFFENCES COMMITTED PRIOR TO INITIATION OF
CIRP
17.1. Section 17 of the Code provides that on commencement of
the CIRP, the powers of management of the corporate debtor
G
vest with the interim resolution professional. Further, the powers
of the Board of Directors or partners of the corporate debtor
stand suspended, and are to be exercised by the interim resolution
professional. Thereafter, Section 29A, read with Section 35(1)(f),
places restrictions on related parties of the corporate debtor from
proposing a resolution plan and purchasing the property of the H
260 SUPREME COURT REPORTS [2021] 14 S.C.R.

A corporate debtor in the CIRP and liquidation process, respectively.
Thus, in most cases, the provisions of the Code effectuate a change
in control of the corporate debtor that results in a clean break of
the corporate debtor from its erstwhile management. However,
the legal form of the corporate debtor continues in the CIRP, and
may be preserved in the resolution plan. Additionally, while the
B
property of the corporate debtor may also change hands upon
resolution or liquidation, such property also continues to exist, either
as property of the corporate debtor, or in the hands of the
purchaser.
17.2. However, even after commencement of CIRP or after its
C successful resolution or liquidation, the corporate debtor, along
with its property, would be susceptible to investigations or
proceedings related to criminal offences committed by it prior to
the commencement of a CIRP, leading to the imposition of certain
liabilities and restrictions on the corporate debtor and its properties
D even after they were lawfully acquired by a resolution applicant
or a successful bidder, respectively.
Liability where a Resolution Plan has been Approved
17.3. It was brought to the Committee that this had created
apprehension amongst potential resolution applicants, who did not
E want to take on the liability for any offences committed prior to
commencement of CIRP. In one case, JSW Steel had specifically
sought certain reliefs and concessions, within an annexure to
the resolution plan it had submitted for approval of the
Adjudicating Authority. Without relief from imposition of the such
F liability, the Committee noted that in the long run, potential
resolution applicants could be disincentivised from proposing a
resolution plan. The Committee was also concerned that
resolution plans could be priced lower on an average, even where
the corporate debtor did not commit any offence and was not
subject to investigation, due to adverse selection by resolution
G applicants who might be apprehensive that they might be held
liable for offences that they have not been able to detect due to
information asymmetry. Thus, the threat of liability falling on
bona fide persons who acquire the legal entity, could substantially
lower the chances of its successful takeover by potential
H resolution applicants.
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 261
[R. F. NARIMAN, J.]

17.4.This could have substantially hampered the Code’s goal of A
value maximisation, and lowered recoveries to creditors, including
financial institutions who take recourse to the Code for resolution
of the NPAs on their balance sheet. At the same time, the
Committee was also conscious that authorities are duty bound to
penalise the commission of any offence, especially in cases
B
involving substantial public interest. Thus, two competing concerns
need to be balanced.
xxx xxx xxx
17.6. Given this, the Committee felt that a distinction must be
drawn between the corporate debtor which may have committed C
offences under the control of its previous management, prior to
the CIRP, and the corporate debtor that is resolved, and taken
over by an unconnected resolution applicant. While the corporate
debtor’s actions prior to the commencement of the CIRP must be
investigated and penalised, the liability must be affixed only upon
those who were responsible for the corporate debtor’s actions in D
this period. However, the new management of the corporate
debtor, which has nothing to do with such past offences, should
not be penalised for the actions of the erstwhile management of
the corporate debtor, unless they themselves were involved in the
commission of the offence, or were related parties, promoters or E
other persons in management and control of the corporate debtor
at the time of or any time following the commission of the offence,
and could acquire the corporate debtor, notwithstanding the
prohibition under Section 29A.
17.7. Thus, the Committee agreed that a new Section should be F
inserted to provide that where the corporate debtor is successfully
resolved, it should not be held liable for any offence committed
prior to the commencement of the CIRP, unless the successful
resolution applicant was also involved in the commission of the
offence, or was a related party, promoter or other person in
management and control of the corporate debtor at the time of or G
any time following the commission of the offence.
17.8. Notwithstanding this, those persons who were responsible
to the corporate debtor for the conduct of its business at the time
of the commission of such offence, should continue to be liable
H
262 SUPREME COURT REPORTS [2021] 14 S.C.R.

A for such an offence, vicariously or otherwise, regardless of the
fact that the corporate debtor’s liability has ceased.”
(emphasis supplied)
32. This Court, in Manish Kumar v. Union of India, 2021 SCC
OnLine SC 30, upheld the constitutional validity of this provision. This
B Court observed:
“280. We are of the clear view that no case whatsoever is made
out to seek invalidation of Section 32A. The boundaries of this
Court’s jurisdiction are clear. The wisdom of the legislation is not
open to judicial review. Having regard to the object of the Code,
C the experience of the working of the code, the interests of all
stakeholders including most importantly the imperative need to
attract resolution applicants who would not shy away from
offering reasonable and fair value as part of the resolution plan
if the legislature thought that immunity be granted to the
D corporate debtor as also its property, it hardly furnishes a ground
for this this Court to interfere. The provision is carefully thought
out. It is not as if the wrongdoers are allowed to get away.
They remain liable. The extinguishment of the criminal liability
of the corporate debtor is apparently important to the new
management to make a clean break with the past and start on
E a clean slate. We must also not overlook the principle that the
impugned provision is part of an economic measure. The
reverence courts justifiably hold such laws in cannot but be
applicable in the instant case as well. The provision deals with
reference to offences committed prior to the commencement
F of the CIRP. With the admission of the application the
management of the corporate debtor passes into the hands of
the Interim Resolution Professional and thereafter into the
hands of the Resolution Professional subject undoubtedly to
the control by the Committee of Creditors. As far as protection
afforded to the property is concerned there is clearly a rationale
G behind it. Having regard to the object of the statute we hardly
see any manifest arbitrariness in the provision.”
33. Section 32A cannot possibly be said to throw any light on the
true interpretation of Section 14(1)(a) as the reason for introducing
Section 32A had nothing whatsoever to do with any moratorium provision.
H At the heart of the Section is the extinguishment of criminal liability of
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 263
[R. F. NARIMAN, J.]

the corporate debtor, from the date the resolution plan has been approved A
by the Adjudicating Authority, so that the new management may make a
clean break with the past and start on a clean slate. A moratorium
provision, on the other hand, does not extinguish any liability, civil or
criminal, but only casts a shadow on proceedings already initiated and
on proceedings to be initiated, which shadow is lifted when the
B
moratorium period comes to an end. Also, Section 32A(1) operates only
after the moratorium comes to an end. At the heart of Section 32A is the
IBC’s goal of value maximisation and the need to obviate lower recoveries
to creditors as a result of the corporate debtor continuing to be exposed
to criminal liability. Unfortunately, the Section is inelegantly drafted. The
second proviso to Section 32A(1) speaks of persons who are in any C
manner in charge of, or responsible to the corporate debtor for the
conduct of its business or associated with the corporate debtor and
who are, directly or indirectly, involved in the commission of “such
offence”, i.e., the offence referred to in sub-section (1), “as per the
report submitted or complaint filed by the investigating authority …”.
D
The report submitted here refers to a police report under Section 173
of the CrPC, and complaints filed by investigating authorities under
special Acts, as opposed to private complaints. If the language of the
second proviso is taken to interpret the language of Section 32A(1) in
that the “offence committed” under Section 32A(1) would not include
offences based upon complaints under Section 2(d) of the CrPC, the E
width of the language would be cut down and the object of Section
32A(1) would not be achieved as all prosecutions emanating from private
complaints would be excluded. Obviously, Section 32A(1) cannot be
read in this fashion and clearly incudes the liability of the corporate
debtor for all offences committed prior to the commencement of the
F
corporate insolvency resolution process. Doubtless, a Section 138
proceeding would be included, and would, after the moratorium period
comes to an end with a resolution plan by a new management being
approved by the Adjudicating Authority, cease to be an offence qua
the corporate debtor.
34. A section which has been introduced by an amendment into G
an Act with its focus on cesser of liability for offences committed by the
corporate debtor prior to the commencement of the corporate insolvency
resolution process cannot be so construed so as to limit, by a sidewind as
it were, the moratorium provision contained in Section 14, with which it
is not at all concerned. If the first proviso to Section 32A(1) is read in H
264 SUPREME COURT REPORTS [2021] 14 S.C.R.

A the manner suggested by Shri Mehta, it will impact Section 14 by taking
out of its ken Section 138/141 proceedings, which is not the object of
Section 32A(1) at all. Assuming, therefore, that there is a clash between
Section 14 of the IBC and the first proviso of Section 32A(1), this clash
is best resolved by applying the doctrine of harmonious construction
so that the objects of both the provisions get subserved in the process,
B
without damaging or limiting one provision at the expense of the other.
If, therefore, the expression “prosecution” in the first proviso of Section
32A(1) refers to criminal proceedings properly so-called either through
the medium of a First Information Reportor complaint filed by an
investigating authority or complaint and not to quasi-criminal proceedings
C that are instituted under Sections 138/141 of the Negotiable Instruments
Act against the corporate debtor, the object of Section 14(1) of the
IBC gets subserved, as does the object of Section 32A, which does
away with criminal prosecutions in all cases against the corporate debtor,
thus absolving the corporate debtor from the same after a new
management comes in.
D
THE NATURE OF PROCEEDINGS UNDER CHAPTER
XVII OF THE NEGOTIABLE INSTRUMENTS ACT
35. This brings us to the nature of proceedings under Chapter
XVII of the Negotiable Instruments Act. Sections 138 to 142 of the
E Negotiable Instruments Act were added by Chapter XVII by an
Amendment Act of 1988. Section 138 reads as follows:
“138. Dishonour of cheque for insufficiency, etc., of funds
in the account.—Where any cheque drawn by a person on an
account maintained by him with a banker for payment of any
F amount of money to another person from out of that account for
the discharge, in whole or in part, of any debt or other liability, is
returned by the bank unpaid, either because of the amount of
money standing to the credit of that account is insufficient to honour
the cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank, such
G
person shall be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be punished
with imprisonment for a term which may extend to two years, or
with fine which may extend to twice the amount of the cheque, or
with both:
H Provided that nothing contained in this Section shall apply unless—
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 265
[R. F. NARIMAN, J.]

(a) the cheque has been presented to the bank within a A
period of six months from the date on which it is
drawn or within the period of its validity, whichever
is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment B
of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within thirty days
of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment C
of the said amount of money to the payee or as the
case may be, to the holder in due course of the cheque
within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this Section, “debt or other
liability” means a legally enforceable debt or other liability.”
D
36. Section 138 contains within it the ingredients of the offence
made out. The deeming provision is important in that the legislature is
cognizant of the fact that what is otherwise a civil liability is now also
deemed to be an offence, since this liability is made punishable by law. It
is important to note that the transaction spoken of is a commercial
transaction between two parties which involves payment of money for a E
debt or liability. The explanation to Section 138 makes it clear that such
debt or other liability means a legally enforceable debt or other liability.
Thus, a debt or other liability barred by the law of limitation would be
outside the scope of Section 138. This, coupled with fine that may extend
to twice the amount of the cheque that is payable as compensation to F
the aggrieved party to cover both the amount of the cheque and the
interest and costs thereupon, would show that it is really a hybrid provision
to enforce payment under a bounced cheque if it is otherwise enforceable
in civil law. Further, though the ingredients of the offence are contained
in the first part of Section 138 when the cheque is returned by the bank
unpaid for the reasons given in the Section, the proviso gives an G
opportunity to the drawer of the cheque, stating that the drawer must
fail to make payment of the amount within 15 days of the receipt of a
notice, again making it clear that the real object of the provision is not to
penalise the wrongdoer for an offence that is already made out, but to
compensate the victim. H
266 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 37. Likewise, under Section 139, a presumption is raised that the
holder of a cheque received the cheque for the discharge, in whole or in
part, of any debt or other liability. To rebut this presumption, facts must
be adduced which, on a preponderance of probability (not beyond
reasonable doubt as in the case of criminal offences), must then be
proved. Section 140 is also important, in that it shall not be a defence in
B
a prosecution for an offence under Section 138 that the drawer had no
reason to believe when he issued the cheque that the cheque may be
dishonoured on presentment for the reasons stated in that Section, thus
making it clear that strict liability will attach, mens rea being no ingredient
of the offence. Section 141 then makes Directors and other persons
C statutorily liable, provided the ingredients of the section are met.
Interestingly, for the purposes of this Section, explanation (a) defines
“company” as meaning any body corporate and includes a firm or other
association of individuals.
38. We have already seen how the language of Sections 96 and
D 101 would include a Section 138/141 proceeding against a firm so that
the moratorium stated therein would apply to such proceedings. If Shri
Mehta’s arguments were to be accepted, under the same Section, namely,
Section 141, two different results would ensue – so far as bodies
corporate, which include limited liability partnerships, are concerned, the
moratorium provision contained in Section 14 of the IBC would not apply,
E but so far as a partnership firm is concerned, being covered by Sections
96 and 101 of the IBC, a Section 138/141 proceeding would be stopped
in its tracks by virtue of the moratorium imposed by these Sections.
Thus, under Section 141(1), whereas a Section 138 proceeding against a
corporate body would continue after initiation of the corporate insolvency
F resolution process, yet, the same proceeding against a firm, being
interdicted by Sections 96 and 101, would not so continue. This startling
result is one of the consequences of accepting the argument of Shri
Mehta, which again leads to the position that inelegant drafting alone
cannot lead to such startling results, the object of Sections 14 and 96 and
101 being the same, namely, to see that during the insolvency resolution
G process for corporate persons/individuals and firms, the corporate body/
firm/individual should be given breathing space to recuperate for a
successful resolution of its debts – in the case of a corporate debtor,
through a new management coming in; and in the case of individuals and
firms, through resolution plans which are accepted by a committee of
H creditors, by which the debtor is given breathing space in which to pay
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 267
[R. F. NARIMAN, J.]

back his/its debts, which would result in creditors getting more than they A
would in a bankruptcy proceeding against an individual or a firm.
39. Section 142 is important and is set out hereunder:
“142. Cognizance of offences.—(1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974),—
B
(a) no court shall take cognizance of any offence
punishable under Section 138 except upon a
complaint, in writing, made by the payee or, as the
case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date C
on which the cause of action arises under clause (c)
of the proviso to Section 138:
Provided that the cognizance of a complaint may be taken
by the court after the prescribed period, if the complainant satisfies
the court that he had sufficient cause for not making a complaint D
within such period.
(c) no court inferior to that of a Metropolitan Magistrate
or a Judicial Magistrate of the first class shall try
any offence punishable under Section 138.
(2) The offence under Section 138 shall be inquired into and tried E
only by a court within whose local jurisdiction,—
(a) if the cheque is delivered for collection through an
account, the branch of the bank where the payee or
holder in due course, as the case may be, maintains
the account, is situated; or F
(b) if the cheque is presented for payment by the payee
or holder in due course, otherwise through an
account, the branch of the drawee bank where the
drawer maintains the account, is situated.
Explanation.—For the purposes of clause (a), where a G
cheque is delivered for collection at any branch of the bank of the
payee or holder in due course, then, the cheque shall be deemed
to have been delivered to the branch of the bank in which the
payee or holder in due course, as the case may be, maintains the
account.” H
268 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 40. A cursory reading of Section 142 will again make it clear that
the procedure under the CrPC has been departed from. First and
foremost, no court is to take cognizance of an offence punishable under
Section 138 except on a complaint made in writing by the payee or the
holder in due course of the cheque – the victim. Further, the language
of Section 142(1)(b) would again show the hybrid nature of these
B
provisions inasmuch as a complaint must be made within one month of
the date on which the “cause of action” under clause (c) of the proviso
to Section 138 arises. The expression “cause of action” is a foreigner
to criminal jurisprudence, and would apply only in civil cases to recover
money. Chapter XIII of the CrPC, consisting of Sections 177 to 189, is
C a chapter dealing with the jurisdiction of the criminal courts in inquiries
and trials. When the jurisdiction of a criminal court is spoken of by
these Sections, the expression “cause of action” is conspicuous by its
absence.
41. By an Amendment Act of 2002, various other sections were
D added to this Chapter. Thus, under Section 143, it is lawful for a Magistrate
to pass a sentence of imprisonment for a term not exceeding one year
and a fine exceeding INR 5,000/- summarily. This provision is again an
important pointer to the fact that the payment of compensation is at the
heart of the provision in that a fine exceeding INR 5000/-, the sky being
E the limit, can be imposed by way of a summary trial which, after
application of Section 357 of the CrPC, results in compensating the victim
up to twice the amount of the bounced cheque. Under Section 144, the
mode of service of summons is done as in civil cases, eschewing the
mode contained in Sections 62 to 64 of the CrPC. Likewise, under Section
145, evidence is to be given by the complainant on affidavit, as it is given
F in civil proceedings, notwithstanding anything contained in the CrPC.
Most importantly, by Section 147, offences under this Act are
compoundable without any intervention of the court, as is required by
Section 320(2) of the CrPC.
42. By another amendment made in 2018, the hybrid nature of
G
these provisions gets a further tilt towards a civil proceeding, by the
power to direct interim compensation under Sections 143A and 148 which
are set out hereinbelow:
“143-A. Power to direct interim compensation.—(1)
Notwithstanding anything contained in the Code of Criminal
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 269
[R. F. NARIMAN, J.]

Procedure, 1973 (2 of 1974), the Court trying an offence under A
Section 138 may order the drawer of the cheque to pay interim
compensation to the complainant—
(a) in a summary trial or a summons case, where he pleads
not guilty to the accusation made in the complaint; and
B
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1) shall not
exceed twenty per cent of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from
the date of the order under sub-section (1), or within such further C
period not exceeding thirty days as may be directed by the Court
on sufficient cause being shown by the drawer of the cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct
the complainant to repay to the drawer the amount of interim
compensation, with interest at the bank rate as published by the D
Reserve Bank of India, prevalent at the beginning of the relevant
financial year, within sixty days from the date of the order, or
within such further period not exceeding thirty days as may be
directed by the Court on sufficient cause being shown by the
complainant.
E
(5) The interim compensation payable under this Section may be
recovered as if it were a fine under Section 421 of the Code of
Criminal Procedure, 1973 (2 of 1974).
(6) The amount of fine imposed under Section 138 or the amount
of compensation awarded under Section 357 of the Code of F
Criminal Procedure, 1973 (2 of 1974), shall be reduced by the
amount paid or recovered as interim compensation under this
Section.”
“148. Power of Appellate Court to order payment pending
appeal against conviction.—(1) Notwithstanding anything G
contained in the Code of Criminal Procedure, 1973 (2 of 1974), in
an appeal by the drawer against conviction under Section 138, the
Appellate Court may order the appellant to deposit such sum which
shall be a minimum of twenty per cent of the fine or compensation
awarded by the trial Court:
H
270 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Provided that the amount payable under this sub-section shall be
in addition to any interim compensation paid by the appellant under
Section 143-A.
(2) The amount referred to in sub-section (1) shall be deposited
within sixty days from the date of the order, or within such further
B period not exceeding thirty days as may be directed by the Court
on sufficient cause being shown by the appellant.
(3) The Appellate Court may direct the release of the amount
deposited by the appellant to the complainant at any time during
the pendency of the appeal:
C Provided that if the appellant is acquitted, the Court shall direct
the complainant to repay to the appellant the amount so released,
with interest at the bank rate as published by the Reserve Bank
of India, prevalent at the beginning of the relevant financial year,
within sixty days from the date of the order, or within such further
D period not exceeding thirty days as may be directed by the Court
on sufficient cause being shown by the complainant.”
43. With this analysis of Chapter XVII, let us look at some of the
decided cases. In CIT v. Ishwarlal Bhagwandas, (1966) 1 SCR 190,
this Court distinguished between civil proceedings and criminal
E proceedings in the context of Article 132 of the Constitution thus:
“… The expression “civil proceeding” is not defined in the
Constitution, nor in the General Clauses Act. The expression in
our judgment covers all proceedings in which a party asserts the
existence of a civil right conferred by the civil law or by statute,
F and claims relief for breach thereof. A criminal proceeding on the
other hand is ordinarily one in which if carried to its conclusion it
may result in the imposition of sentences such as death,
imprisonment, fine or forfeiture of property. It also includes
proceedings in which in the larger interest of the State, orders to
prevent apprehended breach of the peace, orders to bind down
G persons who are a danger to the maintenance of peace and order,
or orders aimed at preventing vagrancy are contemplated to be
passed. But the whole area of proceedings, which reach the High
Courts is not exhausted by classifying the proceedings as civil
and criminal. There are certain proceedings which may be regarded
as neither civil nor criminal. For instance, proceeding for contempt
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 271
[R. F. NARIMAN, J.]

of court, and for exercise of disciplinary jurisdiction against lawyers A
or other professionals, such as Chartered Accountants may not
fall within the classification of proceedings, civil or criminal. But
there is no warrant for the view that from the category of civil
proceedings, it was intended to exclude proceedings relating to or
which seek relief against enforcement of taxation laws of the
B
State. The primary object of a taxation statute is to collect revenue
for the governance of the State or for providing specific services
and such laws directly affect the civil rights of the tax-payer. If a
person is called upon to pay tax which the State is not competent
to levy, or which is not imposed in accordance with the law which
permits imposition of the tax, or in the levy, assessment and C
collection of which rights of the tax-payer are infringed in a manner
not warranted by the statute, a proceeding to obtain relief whether
it is from the tribunal set up by the taxing statute, or from the civil
court would be regarded as a civil proceeding. The character of
the proceeding, in our judgment, depends not upon the nature of
D
the tribunal which is invested with authority to grant relief, but
upon the nature of the right violated and the appropriate relief
which may be claimed. A civil proceeding is, therefore, one in
which a person seeks to enforce by appropriate relief the alleged
infringement of his civil rights against another person or the State,
and which if the claim is proved would result in the declaration E
express or implied of the right claimed and relief such as payment
of debt, damages, compensation, delivery of specific property,
enforcement of personal rights, determination of status etc.”
(at pages 196-197)
“A large number of cases have arisen before the High F
Courts in India in which conflicting views about the meaning of
the expression “civil proceeding” were pressed. In some cases it
was held that the expression “civil proceeding” excludes a
proceeding instituted in the High Court for the issue of a writ
whatever may be the nature of the right infringed and the relief G
claimed in other cases it has been held that a proceeding resulting
from an application for a writ under Article 226 of the Constitution
may in certain cases be deemed to be a “civil proceeding”, if the
claim made, the right infringed and the relief sought warrant that
inference: in still another set of cases it has been held that even if
H
272 SUPREME COURT REPORTS [2021] 14 S.C.R.

A a proceeding commenced by a petition for a writ be generally
categorised as a civil proceeding, where the jurisdiction which the
High Court exercises relates to revenue, the proceeding is not
civil. A perusal of the reasons given in the cases prompt the
following observations. There are two preliminary conditions to
the exercise of the power to grant certificate: (a) there must be a
B
judgment, decree or final order, and that judgment, decree or final
order must be made in a civil proceeding. An advisory opinion in a
tax reference may not be appealed from with certificate under
Article 133 because the opinion is not a judgment, decree or final
order, and (b) a proceeding does not cease to be civil, when relief
C is claimed for enforcement of civil rights merely because the
proceeding is not tried as a civil suit. In a large majority of the
cases in which the jurisdiction of the High Court to certify a case
under Article 133(1) was negatived it appears to have been
assumed that the expression “other proceeding” used in Article
132 of the Constitution is or includes a proceeding of the nature of
D
a revenue proceeding, and therefore the expression “civil
proceeding” in Article 133(1) does not include a revenue
proceeding. This assumption for reasons already set out is
erroneous.”
(at page 199)
E
A perusal of this judgment would show that a civil proceeding is
not necessarily a proceeding which begins with the filing of a suit and
culminates in execution of a decree. It would include a revenue proceeding
as well as a writ petition filed under Article 226 of the Constitution, if the
reliefs therein are to enforce rights of a civil nature. Interestingly, criminal
F proceedings are stated to be proceedings in which the larger interest of
the State is concerned. Given these tests, it is clear that a Section 138
proceeding can be said to be a “civil sheep” in a “criminal wolf’s”
clothing, as it is the interest of the victim that is sought to be protected,
the larger interest of the State being subsumed in the victim alone moving
G a court in cheque bouncing cases, as has been seen by us in the analysis
made hereinabove of Chapter XVII of the Negotiable Instruments Act.
44. In Goaplast (P) Ltd. v. Chico Ursula D’Souza, (2003) 3
SCC 232, the object sought to be achieved by Section 138 is succinctly
set out in paragraph 3 thereof:
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 273
[R. F. NARIMAN, J.]

“3. The learned counsel for the appellant has submitted that mere A
writing of letter to the bank stopping payment of the post-dated
cheques does not take the case out of the purview of the Act. He
has invited our attention to the object behind the provision contained
in Chapter XVII of the Act. For appreciating the issue involved in
the present case, it is necessary to refer to the object behind
B
introduction of Chapter XVII containing Sections 138 to 142. This
chapter was introduced in the Act by the Banking, Public Financial
Institutions and Negotiable Instruments Laws (Amendment) Act,
1988 (Act 66 of 1988) with the object of inculcating faith in the
efficacy of banking operations and giving credibility to negotiable
instruments in business transactions and in order to promote C
efficacy of banking operations. With the policy of liberalisation
adopted by the country which brought about increase in
international trade and commerce, it became necessary to inculcate
faith in banking. World trade is carried through banking operations
rather than cash transactions. The amendment was intended to
D
create an atmosphere of faith and reliance on banking system.
Therefore, while considering the question of applicability of Section
138 of the Act to a situation presented by the facts of the present
case, it is necessary to keep the objects of the legislation in mind.
If a party is allowed to use a cheque as a mode of deferred
payment and the payee of the cheque on the faith that he will get E
his payment on the due date accepts such deferred payment by
way of cheque, he should not normally suffer on account of non-
payment. The faith, which the legislature has desired that such
instruments should inspire in commercial transactions would be
completely lost if parties are as a matter of routine allowed to
F
interdict payment by issuing instruction to banks to stop payment
of cheques. In today’s world where use of cash in day-to-day life
is almost getting extinct and people are using negotiable
instruments in commercial transactions and plastic money for their
daily needs as consumers, it is all the more necessary that people’s
faith in such instruments should be strengthened rather than G
weakened. Provisions contained in Sections 138 to 142 of the Act
are intended to discourage people from not honouring their
commitments by way of payment through cheques. It is desirable
that the court should lean in favour of an interpretation which
serves the object of the statute. The penal provisions contained in
H
274 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Sections 138 to 142 of the Act are intended to ensure that obligations
undertaken by issuing cheques as a mode of payment are
honoured. A post-dated cheque will lose its credibility and
acceptability if its payment can be stopped routinely. A cheque is
a well-recognized mode of payment and post-dated cheques are
often used in various transactions in daily life. The purpose of a
B
post-dated cheque is to provide some accommodation to the drawer
of the cheque. Therefore, it is all the more necessary that the
drawer of the cheque should not be allowed to abuse the
accommodation given to him by a creditor by way of acceptance
of a post-dated cheque. If stoppage of payment of a post-dated
C cheque is permitted to take the case out of the purview of Section
138 of the Act, it will amount to allowing the party to take advantage
of his own wrong.”
45. In Vinay Devanna Nayak v. Ryot Sewa Sahakari Bank
Ltd., (2008) 2 SCC 305, a Division Bench of this Court referred to the
D object of Section 138 thus:
“16. Section 138 of the Act was inserted by the Banking, Public
Financial Institutions and Negotiable Instruments Law
(Amendment) Act, 1988 (Act 66 of 1988) to regulate financial
promises in growing business, trade, commerce and industrial
E activities of the country and the strict liability to promote greater
vigilance in financial matters. The incorporation of the provision
is designed to safeguard the faith of the creditor in the drawer of
the cheque, which is essential to the economic life of a developing
country like India. The provision has been introduced with a view
to curb cases of issuing cheques indiscriminately by making
F stringent provisions and safeguarding interest of creditors.
17. As observed by this Court in Electronics Trade & Technology
Development Corpn. Ltd. v. Indian Technologists & Engineers
(Electronics) (P) Ltd. [(1996) 2 SCC 739 : 1996 SCC (Cri) 454]
the object of bringing Section 138 in the statute book is to inculcate
G faith in the efficacy of banking operations and credibility in
transacting business on negotiable instruments. The provision is
intended to prevent dishonesty on the part of the drawer of
negotiable instruments in issuing cheques without sufficient funds
or with a view to inducing the payee or holder in due course to act
H upon it. It thus seeks to promote the efficacy of bank operations
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 275
[R. F. NARIMAN, J.]

and ensures credibility in transacting business through cheques. A
In such matters, therefore, normally compounding of offences
should not be denied. Presumably, Parliament also realised this
aspect and inserted Section 147 by the Negotiable Instruments
(Amendment and Miscellaneous Provisions) Act, 2002 (Act 55
of 2002). The said Section reads thus:
B
“147. Offences to be compoundable.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), every offence punishable under this Act shall be
compoundable.”
46. Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC C
663 is an important judgment of three Hon’ble Judges of this Court. This
judgment dealt, in particular, with the compounding provision contained
in Section 147 of the Negotiable Instruments Act. Setting out the
provision, the Court held:
“10. At present, we are of course concerned with Section 147 of D
the Act, which reads as follows:
“147. Offences to be compoundable.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), every offence punishable under this Act shall be
compoundable.” E

At this point, it would be apt to clarify that in view of the non
obstante clause, the compounding of offences under the Negotiable
Instruments Act, 1881 is controlled by Section 147 and the scheme
contemplated by Section 320 of the Code of Criminal Procedure
F
(hereinafter “CrPC”) will not be applicable in the strict sense
since the latter is meant for the specified offences under the Penal
Code, 1860.
11. So far as CrPC is concerned, Section 320 deals with offences
which are compoundable, either by the parties without the leave G
of the court or by the parties but only with the leave of the court.
Sub-section (1) of Section 320 enumerates the offences which
are compoundable without the leave of the court, while sub-section
(2) of the said Section specifies the offences which are
compoundable with the leave of the court.
H
276 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 12. Section 147 of the Negotiable Instruments Act, 1881 is in the
nature of an enabling provision which provides for the
compounding of offences prescribed under the same Act, thereby
serving as an exception to the general rule incorporated in sub-
section (9) of Section 320 CrPC which states that “No offence
shall be compounded except as provided by this Section”. A bare
B
reading of this provision would lead us to the inference that
offences punishable under laws other than the Penal Code also
cannot be compounded. However, since Section 147 was inserted
by way of an amendment to a special law, the same will override
the effect of Section 320(9) CrPC, especially keeping in mind
C that Section 147 carries a non obstante clause.”
xxx xxx xxx
“15. The compounding of the offence at later stages of litigation
in cheque bouncing cases has also been held to be permissible in
a recent decision of this Court, reported as K.M. Ibrahim v. K.P.
D Mohammed [(2010) 1 SCC 798 : (2010) 1 SCC (Cri) 921 : (2009)
14 Scale 262] wherein Kabir, J. has noted (at SCC p. 802, paras
13-14):
“13. As far as the non obstante clause included in Section 147
of the 1881 Act is concerned, the 1881 Act being a special
E statute, the provisions of Section 147 will have an overriding
effect over the provisions of the Code relating to compounding
of offences. …
14. It is true that the application under Section 147 of the
Negotiable Instruments Act was made by the parties after the
F proceedings had been concluded before the appellate forum.
However, Section 147 of the aforesaid Act does not bar the
parties from compounding an offence under Section 138 even
at the appellate stage of the proceedings. Accordingly, we find
no reason to reject the application under Section 147 of the
G aforesaid Act even in a proceeding under Article 136 of the
Constitution.”
16. It is evident that the permissibility of the compounding of an
offence is linked to the perceived seriousness of the offence and
the nature of the remedy provided. On this point we can refer to
the following extracts from an academic commentary [cited from:
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 277
[R. F. NARIMAN, J.]

K.N.C. Pillai, R.V. Kelkar’s Criminal Procedure, Fifth Edn. A
(Lucknow: Eastern Book Company, 2008) at p. 444]:
“17.2. Compounding of offences.—A crime is essentially a
wrong against the society and the State. Therefore any
compromise between the accused person and the individual
victim of the crime should not absolve the accused from criminal B
responsibility. However, where the offences are essentially of
a private nature and relatively not quite serious, the Code
considers it expedient to recognise some of them as
compoundable offences and some others as compoundable only
with the permission of the court.”
C
17. In a recently published commentary, the following observations
have been made with regard to the offence punishable under
Section 138 of the Act [cited from: Arun Mohan, Some thoughts
towards law reforms on the topic of Section 138, Negotiable
Instruments Act—Tackling an avalanche of cases (New Delhi:
Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5]: D

“… Unlike that for other forms of crime, the punishment here
(insofar as the complainant is concerned) is not a means of
seeking retribution, but is more a means to ensure payment of
money. The complainant’s interest lies primarily in recovering
the money rather than seeing the drawer of the cheque in jail. E
The threat of jail is only a mode to ensure recovery. As against
the accused who is willing to undergo a jail term, there is little
available as remedy for the holder of the cheque.
If we were to examine the number of complaints filed which were
‘compromised’ or ‘settled’ before the final judgment on one side F
and the cases which proceeded to judgment and conviction on the
other, we will find that the bulk was settled and only a miniscule
number continued.”
18. It is quite obvious that with respect to the offence of dishonour
of cheques, it is the compensatory aspect of the remedy which G
should be given priority over the punitive aspect. …”
(emphasis supplied)
This judgment was followed by a Division Bench of this Court in
JIK Industries Ltd. v. Amarlal V. Jumani, (2012) 3 SCC 255,stating:
H
278 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “68. It is clear from a perusal of the aforesaid Statement of
Objects and Reasons that offence under the NI Act, which was
previously non-compoundable in view of Section 320 sub-section
(9) of the Code has now become compoundable. That does not
mean that the effect of Section 147 is to obliterate all statutory
provisions of Section 320 of the Code relating to the mode and
B
manner of compounding of an offence. Section 147 will only
override Section 320(9) of the Code insofar as offence under
Section 147 of the NI Act is concerned. This is also the ratio
in Damodar [(2010) 5 SCC 663 : (2010) 2 SCC (Civ) 520 : (2010)
2 SCC (Cri) 1328] (see para 12). Therefore, the submission of
C the learned counsel for the appellant to the contrary cannot be
accepted.”
The Court then went into the history of compounding in criminal
law as follows:
“78. Compounding as codified in Section 320 of the Code has a
D historical background. In common law compounding was
considered a misdemeanour. In Kenny’s Outlines of Criminal
Law (19th Edn., 1966) the concept of compounding has been traced
as follows: (p. 407, para 422)
“422. Mercy should be shown, not sold.—It is a
E misdemeanour at common law to ‘compound’ a felony (and
perhaps also to compound a misdemeanour); i.e. to bargain,
for value, to abstain from prosecuting the offender who has
committed a crime. You commit this offence if you promise a
thief not to prosecute him if only he will return the goods he
F stole from you; but you may lawfully take them back if you
make no such promise. You may show mercy, but must not sell
mercy. This offence of compounding is committed by the bare
act of agreement; even though the compounder afterwards
breaks his agreement and prosecutes the criminal. And
inasmuch as the law permits not merely the person injured by
G a crime, but also all other members of the community, to
prosecute, it is criminal for anyone to make such a composition;
even though he suffered no injury and indeed has no concern
with the crime.”
(emphasis in original)
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 279
[R. F. NARIMAN, J.]

79. Russell on Crime (12th Edn.) also describes: A
“Agreements not to prosecute or to stifle a prosecution for a
criminal offence are in certain cases criminal.”
(Ch. 22 — Compounding Offences, p. 339.)
80. Later on compounding was permitted in certain categories of B
cases where the rights of the public in general are not affected
but in all cases such compounding is permissible with the consent
of the injured party.
81. In our country also when the Criminal Procedure Code, 1861
was enacted it was silent about the compounding of offence. C
Subsequently, when the next Code of 1872 was introduced it
mentioned about compounding in Section 188 by providing the
mode of compounding. However, it did not contain any provision
declaring what offences were compoundable. The decision as to
what offences were compoundable was governed by reference
to the exception to Section 214 of the Penal Code. The subsequent D
Code of 1898 provided Section 345 indicating the offences which
were compoundable but the said section was only made applicable
to compounding of offences defined and permissible under the
Penal code. The present Code, which repealed the 1898 Code,
contains Section 320 containing comprehensive provisions for E
compounding.
82. A perusal of Section 320 makes it clear that the provisions
contained in Section 320 and the various sub-sections is a code by
itself relating to compounding of offence. It provides for the various
parameters and procedures and guidelines in the matter of F
compounding. If this Court upholds the contention of the appellant
that as a result of incorporation of Section 147 in the NI Act, the
entire gamut of procedure of Section 320 of the Code are made
inapplicable to compounding of an offence under the NI Act, in
that case the compounding of offence under the NI Act will be
left totally unguided or uncontrolled. Such an interpretation apart G
from being an absurd or unreasonable one will also be contrary to
the provisions of Section 4(2) of the Code, which has been discussed
above. There is no other statutory procedure for compounding of
offence under the NI Act. Therefore, Section 147 of the NI Act
must be reasonably construed to mean that as a result of the said
H
280 SUPREME COURT REPORTS [2021] 14 S.C.R.

A section the offences under the NI Act are made compoundable,
but the main principle of such compounding, namely, the consent
of the person aggrieved or the person injured or the complainant
cannot be wished away nor can the same be substituted by virtue
of Section 147 of the NI Act.”
B
47. In Kaushalya Devi Massand v. Roopkishore Khore,
(2011) 4 SCC 593, a Division Bench of this Court succinctly stated:
“11. Having considered the submissions made on behalf of the
parties, we are of the view that the gravity of a complaint under
C the Negotiable Instruments Act cannot be equated with an offence
under the provisions of the Penal Code, 1860 or other criminal
offences. An offence under Section 138 of the Negotiable
Instruments Act, 1881, is almost in the nature of a civil wrong
which has been given criminal overtones.”
D (emphasis supplied)
(This is the clearest enunciation of a Section 138 proceeding being
a “civil sheep” in a “criminal wolf’s” clothing.)
48. In R. Vijayan v. Baby, (2012) 1 SCC 260, this Court referred
to the provisions of Chapter XVII of the Negotiable Instruments Act,
E
observing that Chapter XVII is a unique exercise which blurs the dividing
line between civil and criminal jurisdictions. The Court held:
“16. We propose to address an aspect of the cases under Section
138 of the Act, which is not dealt with in Damodar S.
Prabhu [(2010) 5 SCC 663 : (2010) 2 SCC (Cri) 1328 : (2010) 2
F
SCC (Civ) 520] . It is sometimes said that cases arising under
Section 138 of the Act are really civil cases masquerading as
criminal cases. The avowed object of Chapter XVII of the Act is
to “encourage the culture of use of cheques and enhance the
credibility of the instrument”. In effect, its object appears to be
G both punitive as also compensatory and restitutive, in regard to
cheque dishonour cases. Chapter XVII of the Act is a unique
exercise which blurs the dividing line between civil and criminal
jurisdictions. It provides a single forum and single proceeding, for
enforcement of criminal liability (for dishonouring the cheque) and
for enforcement of the civil liability (for realisation of the cheque
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 281
[R. F. NARIMAN, J.]

amount) thereby obviating the need for the creditor to move two A
different fora for relief. This is evident from the following
provisions of Chapter XVII of the Act:
(i) The provision for levy of fine which is linked to the
cheque amount and may extend to twice the amount of
the cheque (Section 138) thereby rendering Section B
357(3) virtually infructuous insofar as cheque dishonour
cases are concerned.
(ii) The provision enabling a First Class Magistrate to levy
fine exceeding Rs 5000 (Section 143) notwithstanding
the ceiling to the fine, as Rs 5000 imposed by Section C
29(2) of the Code.
(iii) The provision relating to mode of service of summons
(Section 144) as contrasted from the mode prescribed
for criminal cases in Section 62 of the Code.
(iv) The provision for taking evidence of the complainant by D
affidavit (Section 145) which is more prevalent in civil
proceedings, as contrasted from the procedure for
recording evidence in the Code.
(v) The provision making all offences punishable under
Section 138 of the Act compoundable. E
17. The apparent intention is to ensure that not only the offender
is punished, but also ensure that the complainant invariably receives
the amount of the cheque by way of compensation under Section
357(1)(b) of the Code. Though a complaint under Section 138 of
the Act is in regard to criminal liability for the offence of F
dishonouring the cheque and not for the recovery of the cheque
amount (which strictly speaking, has to be enforced by a civil
suit), in practice once the criminal complaint is lodged under Section
138 of the Act, a civil suit is seldom filed to recover the amount of
the cheque. This is because of the provision enabling the court to
G
levy a fine linked to the cheque amount and the usual direction in
such cases is for payment as compensation, the cheque amount,
as loss incurred by the complainant on account of dishonour of
cheque, under Section 357(1)(b) of the Code and the provision
for compounding the offences under Section 138 of the Act. Most
of the cases (except those where liability is denied) get H
282 SUPREME COURT REPORTS [2021] 14 S.C.R.

A compounded at one stage or the other by payment of the cheque
amount with or without interest. Even where the offence is not
compounded, the courts tend to direct payment of compensation
equal to the cheque amount (or even something more towards
interest) by levying a fine commensurate with the cheque amount.
A stage has reached when most of the complainants, in particular
B
the financing institutions (particularly private financiers) view the
proceedings under Section 138 of the Act, as a proceeding for the
recovery of the cheque amount, the punishment of the drawer of
the cheque for the offence of dishonour, becoming secondary.”
(emphasis supplied)
C
49. In Dashrath Rupsingh Rathod v. State of Maharashtra,
(2014) 9 SCC 129, a three-Judge Bench of this Court answered the
question as to whether the territorial jurisdiction for filing of cheque
dishonour complaints is restricted to the court within whose territorial
jurisdiction the offence is committed, which is the location where the
D cheque is dishonoured, i.e., returned unpaid by the bank on which it is
drawn. This judgment has been legislatively overruled by Section 142(2)
of the Negotiable Instruments Act set out hereinabove. However, Shri
Mehta relied upon paragraphs 15.2 and 17 of the judgment of Vikramjit
Sen, J., which states as follows:
E “15.2. We have undertaken this succinct study mindful of the fact
that Parliamentary debates have a limited part to play in
interpretation of statutes, the presumption being that legislators
have the experience, expertise and language skills to draft laws
which unambiguously convey their intentions and expectations for
F the enactments. What is palpably clear is that Parliament was
aware that they were converting civil liability into criminal content
inter alia by the deeming fiction of culpability in terms of the pandect
comprising Section 138 and the succeeding sections, which
severely curtail defences to prosecution. Parliament was also
aware that the offence of cheating, etc. already envisaged in IPC,
G continued to be available.”
xxx xxx xxx
“17. The marginal note of Section 138 of the NI Act explicitly
defines the offence as being the dishonour of cheques for
insufficiency, etc. of funds in the account. Of course, the headings,
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 283
[R. F. NARIMAN, J.]

captions or opening words of a piece of legislation are normally A
not strictly or comprehensively determinative of the sweep of the
actual Section itself, but it does presage its intendment. See Frick
India Ltd. v. Union of India [(1990) 1 SCC 400 : 1990 SCC
(Tax) 185] and Forage & Co. v. Municipal Corpn. of Greater
Bombay [(1999) 8 SCC 577]. Accordingly, unless the provisions
B
of the section clearly point to the contrary, the offence is
concerned with the dishonour of a cheque; and in the conundrum
before us the body of this provision speaks in the same timbre
since it refers to a cheque being “returned by the bank unpaid”.
None of the provisions of IPC have been rendered nugatory by
Section 138 of the NI Act and both operate on their own. It is C
trite that mens rea is the quintessential of every crime. The
objective of Parliament was to strengthen the use of cheques,
distinct from other negotiable instruments, as mercantile tender
and therefore it became essential for Section 138 of the NI Act
offence to be freed from the requirement of proving mens rea.
D
This has been achieved by deeming the commission of an offence
dehors mens rea not only under Section 138 but also by virtue of
the succeeding two sections. Section 139 carves out the
presumption that the holder of a cheque has received it for the
discharge of any liability. Section 140 clarifies that it will not be
available as a defence to the drawer that he had no reason to E
believe, when he issued the cheque, that it would be dishonoured.
Section 138 unequivocally states that the offence is committed
no sooner the drawee bank returns the cheque unpaid.”
The focus in this case was on the court within whose jurisdiction
the offence under Section 138 can be said to have taken place. This F
case, therefore, has no direct relevance to the point that has been urged
before us.
50. In Lafarge Aggregates & Concrete India (P) Ltd. v.
Sukarsh Azad, (2014) 13 SCC 779, this Court, continuing the trend of
the earlier judgments in describing the hybrid nature of these provisions, G
held:
“6. The respondents have agreed to pay the said amount but the
appellant has refused to accept the payment and insisted that the
appeal against rejection of the recall application should be allowed
by this Court. The counsel for the appellant submitted that merely H
284 SUPREME COURT REPORTS [2021] 14 S.C.R.

A because the accused has offered to make the payment at a later
stage, the same cannot compel the complainant appellant to accept
it and the complainant appellant would be justified in pursuing the
complaint which was lodged under the Negotiable Instruments
Act, 1881. In support of his submission, the counsel for the appellant
also relied on Rajneesh Aggarwal v. Amit J. Bhalla [(2001) 1
B
SCC 631 : 2001 SCC (Cri) 229].1
7. However, we do not feel persuaded to accept this submission
as the appellant has to apprise himself that the primary object and
reason of the Negotiable Instruments Act, 1881, is not merely
penal in nature but is to maintain the efficiency and value of a
C
negotiable instrument by making the accused honour the negotiable
instrument and paying the amount for which the instrument had
been executed.
8. The object of bringing Sections 138 to 142 of the Negotiable
Instruments Act on statute appears to be to inculcate faith in the
D
efficacy of banking operations and credibility in transacting business
of negotiable instruments. Despite several remedies, Section 138
of the Act is intended to prevent dishonesty on the part of the
drawer of negotiable instrument to draw a cheque without sufficient
funds in his account maintained by him in a bank and induces the
E payee or holder in due course to act upon it. Therefore, once a
cheque is drawn by a person of an account maintained by him for
payment of any amount or discharge of liability or debt or is
returned by a bank with endorsement like (i) refer to drawer, (ii)
exceeds arrangements, and (iii) instruction for stop payment and
like other usual endorsement, it amounts to dishonour within the
F
meaning of Section 138 of the Act. Therefore, even after issuance
of notice if the payee or holder does not make the payment within
the stipulated period, the statutory presumption would be of
dishonest intention exposing to criminal liability.”
xxx xxx xxx
G

1
The judgment in Rajneesh Aggarwal v. Amit J. Bhalla, (2001) 1 SCC 631 was
delivered prior to the 2002 and 2018 Amendment Acts to the Negotiable Instruments
Act. The perceptible shift in the provisions by introducing Sections 143 to 148 has
been noticed by this Court hereinabove, as a result of which the observations contained
H in this judgment would no longer be valid.
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 285
[R. F. NARIMAN, J.]

“10. However, in the interest of equity, justice and fair play, we A
deem it appropriate to direct the respondents to make the payment
to the appellant by issuing a demand draft in their favour for a sum
of Rs 5 lakhs, which would be treated as an overall amount including
interest and compensation towards the cheque for which stop-
payment instructions had been issued. If the same is not acceptable
B
to the appellant, it is their choice but that would not allow them to
prosecute the respondents herein in pursuance to the complaint
which they have lodged implicating these two respondents.”
51. In Meters and Instruments (P) Ltd. v. Kanchan Mehta,
(2018) 1 SCC 560, this Court noticed the object of Section 138 and the
amendments made to Chapter XVII, and summarised the case law as C
follows:
“6. The object of introducing Section 138 and other provisions of
Chapter XVII in the Act in the year 1988 [Vide the Banking,
Public Financial Institutions and Negotiable Instruments Laws
(Amendment) Act, 1988] was to enhance the acceptability of D
cheques in the settlement of liabilities. The drawer of cheque is
made liable to prosecution on dishonour of cheque with safeguards
to prevent harassment of honest drawers. The Negotiable
Instruments (Amendment and Miscellaneous Provisions) Act,
2002 to amend the Act was brought in, inter alia, to simplify the E
procedure to deal with such matters. The amendment includes
provision for service of summons by speed post/courier, summary
trial and making the offence compoundable.
7. This Court has noted that the object of the statute was to facilitate
smooth functioning of business transactions. The provision is F
necessary as in many transactions cheques were issued merely as
a device to defraud the creditors. Dishonour of cheque causes
incalculable loss, injury and inconvenience to the payee and credibility
of business transactions suffers a setback. [Goaplast (P)
Ltd. v. Chico Ursula D’Souza, (2004) 2 SCC 235, p. 248, para 26
: 2004 SCC (Cri) 499] At the same time, it was also noted that G
nature of offence under Section 138 primarily related to a civil wrong
and the 2002 Amendment specifically made it compoundable. [Vinay
Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) 2 SCC
305 : (2008) 1 SCC (Civ) 542 : (2008) 1 SCC (Cri) 351] The offence
was also described as “regulatory offence”. The burden of proof H
286 SUPREME COURT REPORTS [2021] 14 S.C.R.

A was on the accused in view of presumption under Section 139 and
the standard of proof was of “preponderance of probabilities”.
[Rangappa v. Sri Mohan, (2010) 11 SCC 441, p. 454, para 28 :
(2010) 4 SCC (Civ) 477 : (2011) 1 SCC (Cri) 184] The object of the
provision was described as both punitive as well as compensatory.
The intention of the provision was to ensure that the complainant
B
received the amount of cheque by way of compensation. Though
proceedings under Section 138 could not be treated as civil suits for
recovery, the scheme of the provision, providing for punishment
with imprisonment or with fine which could extend to twice the
amount of the cheque or to both, made the intention of law clear.
C The complainant could be given not only the cheque amount but
double the amount so as to cover interest and costs. Section
357(1)(b) CrPC provides for payment of compensation for the loss
caused by the offence out of the fine. [R. Vijayan v. Baby, (2012)
1 SCC 260, p. 264, para 9 : (2012) 1 SCC (Civ) 79 : (2012) 1 SCC
(Cri) 520] Where fine is not imposed, compensation can be awarded
D
under Section 357(3) CrPC to the person who suffered loss.
Sentence in default can also be imposed. The object of the provision
is not merely penal but to make the accused honour the negotiable
instruments. [Lafarge Aggregates & Concrete India (P)
Ltd. v. Sukarsh Azad, (2014) 13 SCC 779, p. 781, para 7 : (2014)
E 5 SCC (Cri) 818]”
The Court then concluded:
“18. From the above discussion the following aspects emerge:
18.1. Offence under Section 138 of the Act is primarily a civil
wrong. Burden of proof is on the accused in view of presumption
F under Section 139 but the standard of such proof is “preponderance
of probabilities”. The same has to be normally tried summarily as
per provisions of summary trial under CrPC but with such variation
as may be appropriate to proceedings under Chapter XVII of the
Act. Thus read, principle of Section 258 CrPC will apply and the
G court can close the proceedings and discharge the accused on
satisfaction that the cheque amount with assessed costs and
interest is paid and if there is no reason to proceed with the punitive
aspect.
18.2. The object of the provision being primarily compensatory,
H punitive element being mainly with the object of enforcing the
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 287
[R. F. NARIMAN, J.]

compensatory element, compounding at the initial stage has to be A
encouraged but is not debarred at later stage subject to appropriate
compensation as may be found acceptable to the parties or the
court.
18.3. Though compounding requires consent of both parties, even
in absence of such consent, the court, in the interests of justice, B
on being satisfied that the complainant has been duly compensated,
can in its discretion close the proceedings and discharge the
accused.
18.4. Procedure for trial of cases under Chapter XVII of the Act
has normally to be summary. The discretion of the Magistrate C
under second proviso to Section 143, to hold that it was undesirable
to try the case summarily as sentence of more than one year may
have to be passed, is to be exercised after considering the further
fact that apart from the sentence of imprisonment, the court has
jurisdiction under Section 357(3) CrPC to award suitable
compensation with default sentence under Section 64 IPC and D
with further powers of recovery under Section 431 CrPC. With
this approach, prison sentence of more than one year may not be
required in all cases.
18.5. Since evidence of the complaint can be given on affidavit,
subject to the court summoning the person giving affidavit and E
examining him and the bank’s slip being prima facie evidence of
the dishonour of cheque, it is unnecessary for the Magistrate to
record any further preliminary evidence. Such affidavit evidence
can be read as evidence at all stages of trial or other proceedings.
The manner of examination of the person giving affidavit can be F
as per Section 264 CrPC. The scheme is to follow summary
procedure except where exercise of power under second proviso
to Section 143 becomes necessary, where sentence of one year
may have to be awarded and compensation under Section 357(3)
is considered inadequate, having regard to the amount of the
cheque, the financial capacity and the conduct of the accused or G
any other circumstances.”2
(emphasis supplied)

2
This judgment was subsequently referred to with approval in Makwana Mangaldas
Tulsidas v. State of Gujarat, (2020) 4 SCC 695 (at paragraphs 17 and 18). H
288 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 52. In a recent judgment in M. Abbas Haji v. T.N.
Channakeshava, (2019) 9 SCC 606, this Court held:
“6. It is urged before us that the High Court overstepped the limits
which the appellate court is bound by criminal cases setting aside
an order of acquittal. Proceedings under Section 138 of the Act
B are quasi-criminal proceedings. The principles, which apply to
acquittal in other criminal cases, cannot apply to these cases. …”
(emphasis supplied)
Likewise, in H.N. Jagadeesh v. R. Rajeshwari, (2019) 16 SCC
730, this Court again alluded to the quasi-criminal nature of the offence
C as follows:
“7. The learned counsel for the respondent has submitted that in
order to advance the cause of justice, such an approach is
permissible and for this purpose he has relied upon the judgment
of this Court in Zahira Habibulla H. Sheikh v. State of
D Gujarat [Zahira Habibulla H. Sheikh v. State of Gujarat,
(2004) 4 SCC 158 : 2004 SCC (Cri) 999] . We are afraid that the
ratio of the aforesaid judgment cannot be extended to the facts of
this case, particularly when we find that the present case is a
complaint case filed by the respondent under Section 138 of the
E Act and where the proceedings are also of quasi-criminal nature.”
(emphasis supplied)
53. A conspectus of these judgments would show that the gravamen
of a proceeding under Section 138, though couched in language making
the act complained of an offence, is really in order to get back through a
F summary proceeding, the amount contained in the dishonoured cheque
together with interest and costs, expeditiously and cheaply. We have
already seen how it is the victim alone who can file the complaint which
ordinarily culminates in the payment of fine as compensation which may
extend to twice the amount of the cheque which would include the amount
of the cheque and the interest and costs thereupon. Given our analysis
G
of Chapter XVII of the Negotiable Instruments Act together with the
amendments made thereto and the case law cited hereinabove, it is clear
that a quasi-criminal proceeding that is contained in Chapter XVII of the
Negotiable Instruments Act would, given the object and context of Section
14 of the IBC, amount to a “proceeding” within the meaning of Section
H 14(1)(a), the moratorium therefore attaching to such proceeding.
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 289
[R. F. NARIMAN, J.]

QUASI-CRIMINAL PROCEEDINGS A
54. Shri Lekhi, learned Additional Solicitor General, took strong
objection to the use of the expression “quasi-criminal” to describe
proceedings under Section 138 of the Negotiable Instruments Act, which,
according to him, can only be described as criminal proceedings. This is
for the reason that these proceedings result in imprisonment or fine or B
both, which are punishments that can be imposed only in criminal
proceedings as stated by Section 53 of the Indian Penal Code. It is
difficult to agree with Shri Lekhi. There are many instances of acts
which are punishable by imprisonment or fine or both which have been
described as quasi-criminal. One instance is the infraction of Section
630 of the Companies Act, 1956. This section reads as follows: C

“630. Penalty for wrongful withholding of property.—(1) If
any officer or employee of a company—
(a) wrongfully obtains possession of any property of a company;
or D
(b) having any such property in his possession, wrongfully
withholds it or knowingly applies it to purposes other than those
expressed or directed in the articles and authorised by this Act;
he shall, on the complaint of the company or any creditor or
contributory thereof, be punishable with fine which may extend to E
ten thousand rupees.
(2) The Court trying the offence may also order such officer or
employee to deliver up or refund, within a time to be fixed by the
Court, any such property wrongfully obtained or wrongfully
withheld or knowingly misapplied or in default, to suffer F
imprisonment for a term which may extend to two years.”
In Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd.,
(1995) 3 SCC 732, this Court examined whether a petition under Section
630 of the Companies Act, 1956 is maintainable against the legal heirs of
a deceased officer or employee for retrieval of the company’s property. G
In holding that it was so retrievable, this Court held:
“15. Even though Section 630 of the Act falls in Part XIII of the
Companies Act and provides for penal consequences for wrongful
withholding of the property of the company, the provisions strictly
speaking are not penal in the sense as understood under the penal H
290 SUPREME COURT REPORTS [2021] 14 S.C.R.

A law. The provisions are quasi-criminal. They have been enacted
with the main object of providing speedy relief to a company when
its property is wrongfully obtained or wrongfully withheld by an
employee or officer or an ex-employee or ex-officer or anyone
claiming under them. In our opinion, a proper construction of the
section would be that the term “officer or employee” of a company
B
in Section 630 of the Act would by a deeming fiction include the
legal heirs and representatives of the employee or the officer
concerned continuing in occupation of the property of the company
after the death of the employee or the officer.
16. Under sub-section (1) of Section 630 for the wrongful obtaining
C of the possession of the property of the company or wrongfully
withholding it or knowingly applying it to a purpose other than that
authorised by the company, the employee or the officer concerned
is “punishable with fine which may extend to one thousand rupees”.
The ‘fine’ under this sub-section is to be understood in the nature
D of ‘compensation’ for wrongful withholding of the property of the
company. Under sub-section (2) what is made punishable is
the disobedience of the order of the Court, directing the person,
continuing in occupation, after the right of the employee or the
officer to occupation has extinguished, to deliver up or refund
within a time to be fixed by the court, the property of the company
E obtained or wrongfully withheld or knowingly misapplied. Thus, it
is in the event of the disobedience of the order of the court, that
imprisonment for a term which may extend to two years has been
prescribed. The provision makes the defaulter, whether an
employee or a past employee or the legal heir of the employee,
F who disobeys the order of the court to hand back the property to
the company within the prescribed time liable for punishment.”
(emphasis supplied)
Having so held, the Court did not construe the provision strictly,
which it would have been bound to do had it been a purely criminal one,
G but instead gave it a broad, liberal, and purposeful construction as follows:
“18. Section 630 of the Act provides speedy relief to the company
where its property is wrongfully obtained or wrongfully withheld
by an “employee or an officer” or a “past employee or an officer”
or “legal heirs and representatives” deriving their colour and
H content from such an employee or officer insofar as the occupation
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 291
[R. F. NARIMAN, J.]

and possession of the property belonging to the company is A
concerned. The failure to deliver property back to the employer
on the termination, resignation, superannuation or death of an
employee would render the ‘holding’ of that property wrongful
and actionable under Section 630 of the Act. To hold that the
“legal heirs” would not be covered by the provisions of Section
B
630 of the Act would be unrealistic and illogical. It would defeat
the ‘beneficent’ provision and ignore the factual realities that the
legal heirs or family members who are continuing in possession of
the allotted property had obtained the right of occupancy with
the employee concerned in the property of the employer only by
virtue of their relationship with the employee/officer and had not C
obtained or acquired the right to possession of the property in
any other capacity, status or right. The legislature, which is
supposed to know and appreciate the needs of the people, by
enacting Section 630 of the Act manifested that it was conscious
of the position that today in the corporate sector — private or
D
public enterprise — the employees/officers are often provided
residential accommodation by the employer for the “use and
occupation” of the employee concerned during the course of his
employment. More often than not, it is a part of the service
conditions of the employee that the employer shall provide him
residential accommodation during the course of his employment. E
If an employee or a past employee or anyone claiming the right of
occupancy under them, were to continue to ‘hold’ the property
belonging to the company after the right to be in occupation has
ceased for one reason or the other, it would not only create
difficulties for the company, which shall not be able to allot that
F
property to its other employees, but would also cause hardship for
the employee awaiting allotment and defeat the intention of the
legislature. The courts are therefore obliged to place a broader,
liberal and purposeful construction on the provisions of Section
630 of the Act in furtherance of the object and purpose of the
legislation and construe it in a wider sense to effectuate the G
intendment of the provision. The “heirs and legal representatives”
of the deceased employee have no independent capacity or status
to continue in occupation and possession of the property, which
stood allotted to the employee or the officer concerned or resist
the return of the property to the employer in the absence of any
H
292 SUPREME COURT REPORTS [2021] 14 S.C.R.

A express agreement to the contrary entered with them by the
employer. The court, when approached by the employer for taking
action under Section 630 of the Act, can examine the basis on
which the petition/complaint is filed and if it is found that the
company’s right to retrieve its property is quite explicit and the
stand of the employee, or anyone claiming through him, to continue
B
in possession is baseless, it shall proceed to act under Section 630
of the Act and pass appropriate orders. Only an independent valid
right, not only to occupation but also to possession of the property
belonging to the company, unconnected with the employment of
the deceased employee can defeat an action under Section 630
C of the Act if it can be established that the deceased employee
concerned had not wrongfully nor knowingly applied it for purposes
other than those authorised by the employer. In interpreting a
beneficent provision, the court must be forever alive to the principle
that it is the duty of the court to defend the law from clever evasion
and defeat and prevent perpetration of a legal fraud.”
D
55. Likewise, contempt of court proceedings have been described
as “quasi-criminal” in a long series of judgments. We may point out that
the predecessor to the Contempt of Courts Act, 1971, namely, the
Contempt of Courts Act, 1952 did not contain any definition of the
expression “contempt of court”. A Committee was appointed by the
E Government of India, referred to as the Sanyal Committee, which then
went into whether this expression needs to be defined. The Sanyal
Committee Report, 1963 then broadly divided contempts into two kinds
– civil and criminal contempt – as follows:
“2.1. … Broadly speaking, the classification follows the method
F of dividing contempt into criminal and civil contempts. The
Shawcross Committee adopted the same classification on the
grounds of convenience. Broadly speaking, civil contempts are
contempts which involve a private injury occasioned by
disobedience to the judgment, order or other process of the court.
G On the other hand, criminal contempts are right from their inception
in the nature of offences. In Legal Remembrancer v. Matilal
Ghose, I.L.R. 41 Cal. 173 at 252, Mukerji J. observed thus: “A
criminal contempt is conduct that is directed against the dignity
and authority of the court. A civil contempt is failure to do something
ordered to be done by a court in a civil action for the benefit of the
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 293
[R. F. NARIMAN, J.]

opposing party therein. Consequently, in the case of a civil contempt, A
the proceeding for its punishment is at the instance of the party
interested and is civil in its character; in the case of a criminal
contempt, the proceeding is for punishment of an act committed
against the majesty of the law, and, as the primary purpose of the
punishment is the vindication of the public authority, the proceedings
B
conform as nearly as possible to proceedings in criminal cases. It
is conceivable that the dividing line between the acts constituting
criminal and those constituting civil contempts may become
indistinct in those cases where the two gradually merge into each
other.”
2.2. Notwithstanding the existence of a broad distinction between C
civil and criminal contempts, a large number of cases have shown
that the dividing line between the two is almost imperceptible. For
instance, in Dulal Chandra v. Sukumar, A.I.R. 1958 Cal. 474
at 476, 477, the following observations occur:
“The line between civil and criminal contempt can be broad as D
well as thin. Where the contempt consists in mere failure to
comply with or carry out an order of a court made for the
benefit of a private party, it is plainly civil contempt and it has
been said that when the party, in whose interest the order was
made, moves the court for action to be taken in contempt against E
the contemner with a view to an enforcement of his right, the
proceeding is only a form of execution. In such a case, there is
no criminality in the disobedience, and the contempt, such as it
is, is not criminal. If, however, the contemner adds defiance of
the court to disobedience of the order and conducts himself in
a manner which amounts to obstruction or interference with F
the course of justice, the contempt committed by him is of a
mixed character, partaking as between him and his opponent
of the nature of a civil contempt and as between him and the
court or the State, of the nature of a criminal contempt. In
cases of this type, no clear distinction between civil and criminal G
contempt can be drawn and the contempt committed cannot
be broadly classed as either civil or criminal contempt … To
put the matter in other words, a contempt is merely a civil
wrong where there has been disobedience of an order made
for the benefit of a particular party, but where it has consisted
H
294 SUPREME COURT REPORTS [2021] 14 S.C.R.

A in setting the authority of the courts at nought and has had a
tendency to invade the efficacy of the machinery maintained
by the State for the administration of justice, it is a public wrong
and consequently criminal in nature.”
2.3. In other words, the question whether a contempt is civil or
B criminal is not to be judged with reference to the penalty which
may be inflicted but with reference to the cause for which the
penalty has been inflicted. …”
(at pages 21-22)
(emphasis supplied)
C
56. The Statement of Objects and Reasons for the Contempt of
Courts Act, 1971 expressly states that the said Act was in pursuance of
the Sanyal Committee Report as follows:
“Statement of Objects and Reasons.—It is generally felt that
D the existing law relating to contempt of courts is somewhat
uncertain, undefined and unsatisfactory. The jurisdiction to punish
for contempt touches upon two important fundamental rights of
the citizen, namely, the right to personal liberty and the right to
freedom of expression. It was, therefore, considered advisable to
have the entire law on the subject scrutinised by a special
E committee. In pursuance of this, a Committee was set up in 1961
under the Chairmanship of the late Shri H. N. Sanyal the then
Additional Solicitor General. The Committee made a
comprehensive examination of the law and problems relating to
contempt of Court in the light of the position obtaining in our own
F country and various foreign countries. The recommendations
which the Committee made took note of the importance given to
freedom of speech in the Constitution and of the need for
safeguarding the status and dignity of Courts and interests of
administration of justice.
The recommendations of the Committee have been
G
generally accepted by Government after considering the views
expressed on those recommendations by the State Governments,
Union Territory Administrations the Supreme Court, the High
Courts and the Judicial Commissioners. The Bill seeks to give
effect to the accepted recommendations of the Sanyal
H Committee.”
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 295
[R. F. NARIMAN, J.]

57. The Contempt of Courts Act, 1971 defines “civil contempt” A
and “criminal contempt” as follows:
“2. Definitions.—In this Act, unless the context otherwise
requires,—
xxx xxx xxx
B
(b) “civil contempt” means wilful disobedience to any judgment,
decree, direction, order, writ or other process of a court or wilful
breach of an undertaking given to a court;
(c) “criminal contempt” means the publication (whether by words,
spoken or written, or by signs, or by visible representations, or C
otherwise) of any matter or the doing of any other act whatsoever
which—
(i) scandalises or tends to scandalise, or lowers or tends to
lower the authority of any court; or
(ii) prejudices, or interferes or tends to interfere with, the due D
course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner;
xxx xxx xxx”
E
58. Whether the contempt committed is civil or criminal, the High
Court is empowered to try such “offences” whether the person allegedly
guilty is within or outside its territorial jurisdiction. Thus, Section 11 of
the Contempt of Courts Act, states:
“11. Power of High Court to try offences committed or F
offenders found outside jurisdiction.—A High Court shall have
jurisdiction to inquire into or try a contempt of itself or of any
court subordinate to it, whether the contempt is alleged to have
been committed within or outside the local limits of its jurisdiction,
and whether the person alleged to be guilty of contempt is within
or outside such limits.” G

Punishments awarded for contempt of court, whether civil or
criminal, are then dealt with by Section 12 of the Act, which states:
“12. Punishment for contempt of court.—(1) Save as otherwise
expressly provided in this Act or in any other law, a contempt of
H
296 SUPREME COURT REPORTS [2021] 14 S.C.R.

A court may be punished with simple imprisonment for a term which
may extend to six months, or with fine which may extend to two
thousand rupees, or with both:
Provided that the accused may be discharged or the
punishment awarded may be remitted on apology being made to
B the satisfaction of the court.
Explanation.—An apology shall not be rejected merely on
the ground that it is qualified or conditional if the accused makes
it bona fide.
(2) Notwithstanding anything contained in any law for the time
C being in force, no court shall impose a sentence in excess of that
specified in sub-section(1) for any contempt either in respect of
itself or of a court subordinate to it.
(3) Notwithstanding anything contained in this section, where a
person is found guilty of a civil contempt, the court, if it considers
D that a fine will not meet the ends of justice and that a sentence of
imprisonment is necessary shall, instead of sentencing him to simple
imprisonment, direct that he be detained in a civil prison for such
period not exceeding six months as it may think fit.
(4) Where the person found guilty of contempt of court in respect
E of any undertaking given to a court is a company, every person
who, at the time the contempt was committed, was in charge of,
and was responsible to, the company for the conduct of the business
of the company, as well as the company, shall be deemed to be
guilty of the contempt and the punishment may be enforced with
F the leave of the court, by the detention in civil prison of each such
person:
Provided that nothing contained in this sub-section shall
render any such person liable to such punishment if he proves
that the contempt was committed without his knowledge or that
he exercised all due diligence to prevent its commission.
G
(5) Notwithstanding anything contained in sub-section (4), where
the contempt of court referred to therein has been committed by
a company and it is proved that the contempt has been committed
with the consent or connivance of, or is attributable to any neglect
on the part of, any director, manager, secretary or other officer of
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 297
[R. F. NARIMAN, J.]

the company, such director, manager, secretary or other officer A
shall also be deemed to be guilty of the contempt and the punishment
may be enforced, with the leave of the court, by the detention in
civil prison of such director, manager, secretary or other officer.
Explanation.—For the purpose of sub-sections (4) and (5),—
B
(a) “company” means any body corporate and includes a
firm or other association of individuals; and
(b) “director”, in relation to a firm, means a partner in the
firm.”
59. In criminal contempt cases, “cognizance” in contempts other C
than those referred to in Section 14 of the Act is taken by the Supreme
Court or the High Court in the manner provided by Section 15. Section
17 then lays down the procedure that is to be followed after cognizance
is taken. Finally, by Section 23, the Supreme Court and the High Courts
are given the power to make rules, not inconsistent with the provisions D
of the Act, providing for any matter relating to its procedure.
60. This Court, in Niaz Mohd. v. State of Haryana, (1994) 6
SCC 332, spoke of the hybrid nature of a civil contempt as follows:
“9. Section 2(b) of the Contempt of Courts Act, 1971 (hereinafter
E
referred to as ‘the Act’) defines “civil contempt” to mean “wilful
disobedience to any judgment, decree, direction, order, writ or
other process of a court …”. Where the contempt consists in
failure to comply with or carry out an order of a court made in
favour of a party, it is a civil contempt. The person or persons in
whose favour such order or direction has been made can move F
the court for initiating proceeding for contempt against the alleged
contemner, with a view to enforce the right flowing from the order
or direction in question. …
10. … In Halsbury’s Laws of England, 4th Edn., Vol. 9, para
53, p. 34, it has been said: G

“Although contempt may be committed in the absence of wilful
disobedience on the part of the contemner, committal or
sequestration will not be order unless the contempt involves a
degree of fault or misconduct.”
H
298 SUPREME COURT REPORTS [2021] 14 S.C.R.

A It has been further stated:
“In circumstances involving misconduct, civil contempt bears
a twofold character, implying as between the parties to the
proceedings merely a right to exercise and a liability to submit
to a form of civil execution, but as between the party in default
B and the State, a penal or disciplinary jurisdiction to be exercised
by the court in the public interest.”
(emphasis supplied)
In T.N. Godavarman Thirumulpad (102) v. Ashok Khot,
(2006) 5 SCC 1, this Court held:
C
“33. Proceedings for contempt are essentially personal and
punitive. This does not mean that it is not open to the court, as a
matter of law to make a finding of contempt against any official
of the Government say, Home Secretary or a Minister.

D 34. While contempt proceedings usually have these characteristics
and contempt proceedings against a government department or a
Minister in an official capacity would not be either personal or
punitive (it would clearly not be appropriate to fine or sequester
the assets of the Crown or a government department or an officer
of the Crown acting in his official capacity), this does not mean
E that a finding of contempt against a government department or
Minister would be pointless. The very fact of making such a finding
would vindicate the requirements of justice. In addition, an order
for costs could be made to underline the significance of a contempt.
A purpose of the court’s powers to make findings of contempt is
F to ensure that the orders of the court are obeyed. This jurisdiction
is required to be coextensive with the court’s jurisdiction to make
orders which need the protection which the jurisdiction to make
findings of contempt provides. In civil proceedings the court can
now make orders (other than injunctions or for specific
performance) against authorised government departments or the
G Attorney General. On applications for judicial review orders can
be made against Ministers. In consequence such orders must be
taken not to offend the theory that the Crown can supposedly do
no wrong. Equally, if such orders are made and not obeyed, the
body against whom the orders were made can be found guilty of
contempt without offending that theory, which could be the only
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 299
[R. F. NARIMAN, J.]

justifiable impediment against making a finding of contempt. A
(See M. v. Home Office [(1993) 3 All ER 537 : (1994) 1 AC 377
: (1993) 3 WLR 433 (HL)]).”
(emphasis supplied)
61. The description of contempt proceedings being “quasi-criminal”
in nature has its origin in the celebrated Privy Council judgment of Andre B
Paul Terence Ambard v. Attorney-General of Trinidad and
Tobago, AIR 1936 PC 141 in which Lord Atkin referred to contempt of
court proceedings as quasi-criminal (see page 143).
62. In Sahdeo v. State of U.P., (2010) 3 SCC 705, this Court
again referred to the “quasi-criminal” nature of contempt proceedings C
as follows:
“15. The proceedings of contempt are quasi-criminal in nature.
In a case where the order passed by the court is not complied
with by mistake, inadvertence or by misunderstanding of the
meaning and purport of the order, unless it is intentional, no charge D
of contempt can be brought home. There may possibly be a case
where disobedience is accidental. If that is so, there would be
no contempt. [Vide B.K. Kar v. Chief Justice and Justices of
the Orissa High Court [AIR 1961 SC 1367 : (1961) 2 Cri LJ
438] (AIR p. 1370, para 7).] E
xxx xxx xxx
18. In Sukhdev Singh v. Teja Singh [AIR 1954 SC 186 : 1954
Cri LJ 460] this Court placing reliance upon the judgment of the
Privy Council in Andre Paul Terence Ambard v. Attorney
General of Trinidad and Tabago [AIR 1936 PC 141], held that F
the proceedings under the Contempt of Courts Act are quasi-
criminal in nature and orders passed in those proceedings are to
be treated as orders passed in criminal cases.
19. In S. Abdul Karim v. M.K. Prakash [(1976) 1 SCC 975 :
1976 SCC (Cri) 217 : AIR 1976 SC 859] , Chhotu Ram v. Urvashi G
Gulati [(2001) 7 SCC 530 : 2001 SCC (L&S) 1196] , Anil Ratan
Sarkar v. Hirak Ghosh [(2002) 4 SCC 21 : AIR 2002 SC 1405],
Daroga Singh v. B.K. Pandey [(2004) 5 SCC 26 : 2004 SCC
(Cri) 1521] and All India Anna Dravida Munnetra Kazhagam
v. L.K. Tripathi [(2009) 5 SCC 417 : (2009) 2 SCC (Cri) 673 :
H
300 SUPREME COURT REPORTS [2021] 14 S.C.R.

A AIR 2009 SC 1314] , this Court held that burden and standard of
proof in contempt proceedings, being quasi-criminal in nature, is
the standard of proof required in criminal proceedings, for the
reason that contempt proceedings are quasi-criminal in nature.
20. Similarly, in Mrityunjoy Das v. Sayed Hasibur Rahaman
B [(2001) 3 SCC 739 : (2006) 1 SCC (Cri) 296 : AIR 2001 SC 1293]
this Court placing reliance upon a large number of its earlier
judgments, including V.G. Nigam v. Kedar Nath Gupta [(1992) 4
SCC 697 : 1993 SCC (L&S) 202 : (1993) 23 ATC 400 : AIR 1992
SC 2153] and Murray & Co. v. Ashok Kumar Newatia [(2000)
C 2 SCC 367 : 2000 SCC (Cri) 473 : AIR 2000 SC 833], held that
jurisdiction of contempt has been conferred on the Court to punish
an offender for his contemptuous conduct or obstruction to the
majesty of law, but in the case of quasi-criminal in nature, charges
have to be proved beyond reasonable doubt and the alleged
contemnor becomes entitled to the benefit of doubt. It would be
D very hazardous to impose sentence in contempt proceedings on
some probabilities.
xxx xxx xxx
27. In view of the above, the law can be summarised that the
E High Court has a power to initiate the contempt proceedings suo
motu for ensuring the compliance with the orders passed by the
Court. However, contempt proceedings being quasi-criminal in
nature, the same standard of proof is required in the same manner
as in other criminal cases. The alleged contemnor is entitled to
the protection of all safeguards/rights which are provided in the
F
criminal jurisprudence, including the benefit of doubt. There must
be a clear-cut case of obstruction of administration of justice by a
party intentionally to bring the matter within the ambit of the said
provision. The alleged contemnor is to be informed as to what is
the charge, he has to meet. Thus, specific charge has to be framed
G in precision. The alleged contemnor may ask the Court to permit
him to cross-examine the witnesses i.e. the deponents of affidavits,
who have deposed against him. In spite of the fact that contempt
proceedings are quasi-criminal in nature, provisions of the Code
of Criminal Procedure, 1973 (hereinafter called “CrPC”) and the
Evidence Act are not attracted for the reason that proceedings
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 301
[R. F. NARIMAN, J.]

have to be concluded expeditiously. Thus, the trial has to be A
concluded as early as possible. The case should not rest only on
surmises and conjectures. There must be clear and reliable
evidence to substantiate the allegations against the alleged
contemnor. The proceedings must be concluded giving strict
adherence to the statutory rules framed for the purpose.”
B
In Maninderjit Singh Bitta v. Union of India, (2012) 1 SCC
273, this Court again referred to “civil” and “criminal” contempt as follows:
“17. Section 12 of the 1971 Act deals with the contempt of court
and its punishment while Section 15 deals with cognizance of
criminal contempt. Civil contempt would be wilful breach of an C
undertaking given to the court or wilful disobedience of any
judgment or order of the court, while criminal contempt would
deal with the cases where by words, spoken or written, signs or
any matter or doing of any act which scandalises, prejudices or
interferes, obstructs or even tends to obstruct the due course of
D
any judicial proceedings, any court and the administration of justice
in any other manner. Under the English law, the distinction between
criminal and civil contempt is stated to be very little and that too
of academic significance. However, under both the English and
Indian law these are proceedings sui generis.
E
xxx xxx xxx
19. Under the Indian law the conduct of the parties, the act of
disobedience and the attendant circumstances are relevant to
consider whether a case would fall under civil contempt or criminal
contempt. For example, disobedience of an order of a court
F
simpliciter would be civil contempt but when it is coupled with
conduct of the parties which is contemptuous, prejudicial and is in
flagrant violation of the law of the land, it may be treated as a
criminal contempt. Even under the English law, the courts have
the power to enforce its judgment and orders against the
recalcitrant parties.” G
That contempt proceedings are “quasi-criminal” is also stated in
Kanwar Singh Saini v. High Court of Delhi, (2012) 4 SCC 307 (at
paragraph 38) and in T.C. Gupta v. Bimal Kumar Dutta, (2014) 14
SCC 446 (at paragraph 10).
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302 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 63. What is clear from the aforesaid is that though there may not
be any watertight distinction between civil and criminal contempt, yet,
an analysis of the aforesaid authorities would make it clear that civil
contempt is essentially an action which is moved by the party in whose
interest an order was made with a view to enforce its personal right,
where contumacious disregard for such order results in punishment of
B
the offender in public interest, whereas a criminal contempt is, in essence,
a proceeding which relates to the public interest in seeing that the
administration of justice remains unpolluted. What is of importance is to
note that even in cases of civil contempt, fine or imprisonment or both
may be imposed. The mere fact that punishments that are awardable
C relate to Section 53 of the Indian Penal Code would not, therefore, render
a civil contempt proceeding a criminal proceeding. There is a great deal
of wisdom in the finding of the Sanyal Committee Report that the question
whether a contempt is civil or criminal is not to be judged with reference
to the penalty which may be inflicted but with reference to the cause for
which the penalty has been inflicted.
D
64. Clearly, therefore, given the hybrid nature of a civil contempt
proceeding, described as “quasi-criminal” by several judgments of this
Court, there is nothing wrong with the same appellation “quasi-criminal”
being applied to a Section 138 proceeding for the reasons given by us on
an analysis of Chapter XVII of the Negotiable Instruments Act. We,
E
therefore, reject the learned Additional Solicitor General’s strenuous
argument that the appellation “quasi-criminal” is a misnomer when it
comes to Section 138 proceedings and that therefore some of the cases
cited in this judgment should be given a fresh look.
OTHER SECTIONS OF THE IBC IN RELATION TO
F
SECTION 14 OF THE IBC
65. Shri Mehta then argued that Section 33(5) of the IBC may
also be seen, as it is a provision analogous to Section 14(1)(a). Section
33(5) states as follows:
G “33. Initiation of liquidation.—
xxx xxx xxx
(5) Subject to Section 52, when a liquidation order has been passed,
no suit or other legal proceeding shall be instituted by or against
H the corporate debtor:
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 303
[R. F. NARIMAN, J.]

Provided that a suit or other legal proceeding may be A
instituted by the liquidator, on behalf of the corporate debtor, with
the prior approval of the Adjudicating Authority.
xxx xxx xxx”
It will be noted that under this Section, the expression “no suit or
other legal proceeding” occurs both in the enacting part as well as the B
proviso. Going by the proviso first, given the object that the liquidator
now has to act on behalf of the company after a winding-up order is
passed, which includes filing of suits and other legal proceedings on
behalf of the company, there is no earthly reason as to why a Section
138/141 proceeding would be outside the ken of the proviso. On the
C
contrary, as the liquidator alone now represents the company, it is obvious
that whatever the company could do pre-liquidation is now vested in the
liquidator, and in order to realise monies that are due to the company,
there is no reason why the liquidator cannot institute a Section 138/141
proceeding against a defaulting debtor of the company. Obviously, this
language needs to be construed in the widest possible form as there D
cannot be any residuary category of “other legal proceedings” which
can be instituted against some person other than the liquidator or by the
liquidator who now alone represents the company. Given the object of
this provision also, what has been said earlier with regard to the non-
application of the doctrines of ejusdem generis and noscitur a sociis
E
would apply with all force to this provision as well.
66. In fact, several other provisions of the IBC may also be looked
at in this context. Thus, when it comes to the duties of a resolution
professional who takes over the management of the company during the
corporate insolvency resolution process, Section 25(2)(b) states as
follows: F
“25. Duties of resolution professional.—
xxx xxx xxx
(2) For the purposes of sub-section (1), the resolution professional
shall undertake the following actions, namely— G
xxx xxx xxx
(b) represent and act on behalf of the corporate debtor with
third parties, exercise rights for the benefit of the corporate
debtor in judicial, quasi-judicial or arbitration proceedings;
xxx xxx xxx” H
304 SUPREME COURT REPORTS [2021] 14 S.C.R.

A Here again, given the fact that it is the resolution professional
alone who is now to preserve and protect the assets of the corporate
debtor in this interregnum, the resolution professional therefore is to
represent and act on behalf of the corporate debtor in all judicial, quasi-
judicial, or arbitration proceedings, which would include criminal
proceedings. Here again, the word “judicial” cannot be construed noscitur
B
a sociis so as to cut down its plain meaning, as otherwise, quasi-judicial
or arbitration proceedings, not being criminal proceedings, the word
“judicial” would then take colour from them. This would stultify the object
sought to be achieved by Section 25 and result in an absurdity, namely,
that during this interregnum, nobody can represent or act on behalf of
C the corporate debtor in criminal proceedings. Likewise, if a corporate
debtor cannot be taken over by a new management and has to be
condemned to liquidation, the powers and duties of the liquidator, while
representing the corporate debtor, are enumerated in Section 35. Section
35(1)(k), in particular, states as follows:
D “35. Powers and duties of liquidator.—(1) Subject to the
directions of the Adjudicating Authority, the liquidator shall have
the following powers and duties, namely:—
xxx xxx xxx
E (k) to institute or defend any suit, prosecution or other legal
proceedings, civil or criminal, in the name of on behalf of the
corporate debtor;
xxx xxx xxx”
F This provision specifically speaks of “prosecution” and “criminal
proceedings”. Contrasted with Section 25(2)(b) and Section 33(5), an
argument could be made that the absence of the expressions
“prosecution” and “criminal proceedings” in Section 25(2)(b) and Section
33(5) would show that they were designedly eschewed by the legislature.
G We have seen how inelegant drafting cannot lead to absurd results or
results which stultify the object of a provision, given its otherwise wide
language. Thus, nothing can be gained by juxtaposing various provisions
against each other and arriving at conclusions that are plainly untenable
in law.

H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 305
[R. F. NARIMAN, J.]

CASE LAW UNDER PROVISIONS OF OTHER STATUTES A
67. Shri Mehta then relied strongly upon judgments under Section
22(1) of the SICA and under Section 446(2) of the Companies Act,
1956. He relied upon BSI Ltd. v. Gift Holdings (P) Ltd., (2000) 2
SCC 737, which judgment held that the expression “suit” in Section 22(1)
of the SICA would not include a Section 138 proceeding. The Court was B
directly concerned with only this expression and, therefore, held:
“19. The said contention is also devoid of merits. The word “suit”
envisaged in Section 22(1) cannot be stretched to criminal
prosecutions. The suit mentioned therein is restricted to “recovery
of money or for enforcement of any security against the industrial C
company or of any guarantee in respect of any loans or advance
granted to the industrial company”. As the suit is clearly delineated
in the provision itself, the context would not admit of any other
stretching process.
20. A criminal prosecution is neither for recovery of money nor D
for enforcement of any security etc. Section 138 of the NI Act is
a penal provision the commission of which offence entails a
conviction and sentence on proof of the guilt in duly conducted
criminal proceedings. Once the offence under Section 138 is
completed the prosecution proceedings can be initiated not for
E
recovery of the amount covered by the cheque but for bringing
the offender to penal liability. What was considered
in Maharashtra Tubes Ltd. [(1993) 2 SCC 144] is whether the
remedy provided in Section 29 or Section 31 of the State Finance
Corporation Act, 1951 could be pursued notwithstanding the ban
contained in Section 22 of SICA. Hence the legal principle F
adumbrated in the said decision is of no avail to the appellants.
21. In the above context it is pertinent to point out that Section
138 of the NI Act was introduced in 1988 when SICA was already
in vogue. Even when the amplitude of the word “company”
mentioned in Section 141 of the NI Act was widened through the G
explanation added to the Section, Parliament did not think it
necessary to exclude companies falling under Section 22 of SICA
from the operation thereof. If Parliament intended to exempt sick
companies from prosecution proceedings, necessary provision
would have been included in Section 141 of the NI Act. More
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306 SUPREME COURT REPORTS [2021] 14 S.C.R.

A significantly, when Section 22(1) of SICA was amended in 1994
by inserting the words
“and no suit for the recovery of money or for the enforcement
of any security against the industrial company or of any
guarantee in respect of any loans or advance granted to the
B industrial company”
Parliament did not specifically include prosecution proceedings
within the ambit of the said ban.”
This case is wholly distinguishable as the word “proceedings” did
not come up for consideration at all. Further, given the object of Section
C
22(1) of the SICA, which was amended in 1994 by inserting the words
that were interpreted by this Court, parliament restricted proceedings
only to suits for recovery of money etc., thereby expressly not including
prosecution proceedings, as was held by this Court. The observations
contained in paragraph 20, that Section 138 of the Negotiable Instruments
D Act is a penal provision in a criminal proceeding cannot now be said to
be good law given the march of events, in particular, the amendments of
2002 and 2018 to the Negotiable Instruments Act, as pointed out
hereinabove, and the later judgments of this Court interpreting Chapter
XVII of the Negotiable Instruments Act.
E 68. The next decision relied upon by Shri Mehta is the judgment in
Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd.,
(2000) 2 SCC 745, which merely followed this judgment (see paragraphs
15-18).
69. Likewise, all the judgments cited under Section 446(2) of the
F Companies Act, 1956 are distinguishable. Section 446(2) states as follows:
“446. Suits stayed on winding up order.—
xxx xxx xxx
(2) The Tribunal shall, notwithstanding anything contained in any
G other law for the time being in force, have jurisdiction to entertain,
or dispose of—
(a) any suit or proceeding by or against the company;
(b) any claim made by or against the company (including claims
by or against any of its branches in India);
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 307
[R. F. NARIMAN, J.]

(c) any application made under Section 391 by or in respect of A
the company;
(d) any question of priorities or any other question whatsoever,
whether of law or fact, which may relate to or arise in
course of the winding up of the company;
whether such suit or proceeding has been instituted or is instituted, B
or such claim or question has arisen or arises or such application
has been made or is made before or after the order for the winding
up of the company, or before or after the commencement of the
Companies (Amendment) Act, 1960.
xxx xxx xxx” C

70. In S.V. Kandeakar v. V.M. Deshpande, (1972) 1 SCC
438[“S.V. Kandeakar”], this Court explained why income tax
proceedings would be outside the purview of Section 446(2) as follows:
“17. Turning now to the Income Tax Act it is noteworthy that D
Section 148 occurs in Chapter XIV which beginning with Section
139 prescribes the procedure for assessment and Section 147
provides for assessment or reassessment of income escaping
assessment. This Section empowers the Income Tax Officer
concerned subject to the provisions of Sections 148 to 153 to assess
or re-assess escaped income. While holding these assessment E
proceedings the Income Tax Officer does not, in our view, perform
the functions of a Court as contemplated by Section 446(2) of the
Act. Looking at the legislative history and the scheme of the Indian
Companies Act, particularly the language of Section 446, read as
a whole, it appears to us that the expression “other legal F
proceeding” in sub-section (1) and the expression “legal
proceeding” in sub-section (2) convey the same sense and the
proceedings in both the sub-sections must be such as can
appropriately be dealt with by the winding up court. The Income
Tax Act is, in our opinion, a complete code and it is particularly so
with respect to the assessment and re-assessment of income tax G
with which alone we are concerned in the present case. The fact
that after the amount of tax payable by an assessee has been
determined or quantified its realisation from a company in liquidation
is governed by the Act because the income tax payable also being
a debt has to rank pari passu with other debts due from the company
H
308 SUPREME COURT REPORTS [2021] 14 S.C.R.

A does not mean that the assessment proceedings for computing
the amount of tax must be held to be such other legal proceedings
as can only be started or continued with the leave of the liquidation
court under Section 446 of the Act. The liquidation court, in our
opinion, cannot perform the functions of Income Tax Officers
while assessing the amount of tax payable by the assessees even
B
if the assessee be the company which is being wound up by the
Court. The orders made by the Income Tax Officer in the course
of assessment or re-assessment proceedings are subject to appeal
to the higher hierarchy under the Income Tax Act. There are also
provisions for reference to the High Court and for appeals from
C the decisions of the High Court to the Supreme Court and then
there are provisions for revision by the Commissioner of Income
Tax. It would lead to anomalous consequences if the winding up
court were to be held empowered to transfer the assessment
proceedings to itself and assess the company to income tax. The
argument on behalf of the appellant by Shri Desai is that the winding
D
up court is empowered in its discretion to decline to transfer the
assessment proceedings in a given case but the power on the
plain language of Section 446 of the Act must be held to vest in
that court to be exercised only if considered expedient. We are
not impressed by this argument. The language of Section 446
E must be so construed as to eliminate such startling consequences
as investing the winding up court with the powers of an Income
Tax Officer conferred on him by the Income Tax Act, because in
our view the legislature could not have intended such a result.
18. The argument that the proceedings for assessment or re-
F assessment of a company which is being wound up can only be
started or continued with the leave of the liquidation court is also,
on the scheme both of the Act and of the Income Tax Act,
unacceptable. We have not been shown any principle on which
the liquidation court should be vested with the power to stop
assessment proceedings for determining the amount of tax payable
G by the company which is being wound up. The liquidation court
would have full power to scrutinise the claim of the revenue after
income tax has been determined and its payment demanded from
the liquidator. It would be open to the liquidation court then to
decide how far under the law the amount of income tax determined
H by the Department should be accepted as a lawful liability on the
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 309
[R. F. NARIMAN, J.]

funds of the company in liquidation. At that stage the winding up A
court can fully safeguard the interests of the company and its
creditors under the Act. Incidentally, it may be pointed out that at
the Bar no English decision was brought to our notice under which
the assessment proceedings were held to be controlled by the
winding up court. On the view that we have taken, the decisions
B
in the case of Seth Spinning Mills Ltd., (In Liquidation) and
the Mysore Spun Silk Mills Ltd., (In Liquidation) do not seem
to lay down the correct rule of law that the Income Tax Officers
must obtain leave of the winding up court for commencing or
continuing assessment or re-assessment proceedings.”
From this judgment, what becomes clear is the fact that the C
winding-up court under Section 446(2) is to take up all matters which
the company court itself can conveniently dispose of rather than exposing
a company which is under winding up to expensive litigation in other
courts. This being the object of Section 446(2), the expression
“proceeding” was given a limited meaning as it is obvious that a company D
court cannot dispose of an assessment proceeding in income tax or a
criminal proceeding. This is further made clear in Sudarshan Chits (I)
Ltd. v. O. Sukumaran Pillai, (1984) 4 SCC 657 (at paragraph 8) and
in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC
159 (at paragraph 14).
E
71. Shri Mehta also relied upon D.K. Kapur v. Reserve Bank
of India, 2001 SCC OnLine Del 67 : (2001) 58 DRJ 424 (DB). This
judgment referred to Section 446(1) and (2) of the Companies Act, 1956
and contrasted the language contained therein with the language contained
in Section 457 of the same Act, which made it clear that the liquidator in
a winding up by the court shall have power, with the sanction of the F
court, to institute or defend any suit, prosecution, or other legal proceeding,
civil or criminal, in the name and on behalf of the company. Thus, the
Delhi High Court held:
“12. Mere look at the aforesaid provisions would show that on
the one hand, in Section 457 of the Act, the legislature has G
empowered the liquidator to institute or defend any ‘suit’ or
‘prosecution’ or ‘other legal proceedings’ civil or criminal in the
name and on behalf of company after permission from the court;
and by Section 454 (5A) of the Act the legislature has empowered
the Company Court itself to take cognizance of the offence under H
310 SUPREME COURT REPORTS [2021] 14 S.C.R.

A sub-section (5) of Section 454 of the Act and to try such offenders
as per the procedure provided for trial of summons cases under
the Code of Criminal Procedure, 1974; but on the other hand in
Sections 442 and 446 of the Act the legislature has used only the
expression “suit or other legal proceedings”. The words
“prosecution” or “criminal case” are conspicuously missing in these
B
Sections. It appears quite logical as purpose and object of Sections
442 and 446 of the Act is to enable the Company Court to oversee
the affairs of the company and to avoid wasteful expenditure.
Therefore the intention of the legislature under these Sections
does not appear to provide jurisdiction to the Company Court over
C criminal proceedings either against the company or against its
directors. Wherever legislature thought it necessary to provide
such jurisdiction it has used the appropriate expressions.”
It then set out the judgment in S.V. Kandeakar (supra) in
paragraph 14, and concluded:
D “15. The reasoning adopted by the Supreme Court in the above
case would be fully applicable to the facts at hand. Complaints
under the penal provisions of other statutes against the company
or its directors, (except those provided under the Companies Act)
cannot be appropriately dealt with by the Company Court. Orders
E passed by the criminal court are subject to the appeal and revision
etc. under the Code of Criminal Procedure. If the winding up
court is held to be empowered to transfer these criminal
proceedings to itself it would lead to anomalous consequences.”
It was in this context that the Court therefore ultimately held:
F “20. … The expression “other legal proceedings” must be read
in ejusdem generis with the expression “suit” in Section 446 of
the Act. If so read it can only refer to any civil proceedings and
criminal proceedings have to be excluded. Therefore, no permission
was required to be taken from Company Court for filing criminal
G complaint either against the company or against its directors.”
72. Shri Mehta’s reliance on Indorama Synthetics (I) Ltd. v.
State of Maharashtra, 2016 SCC OnLine Bom 2611 : (2016) 4 Mah LJ
249, is also misplaced, for the reason that the finding of the Bombay
High Court that Section 138 proceedings were not included in Section
446 of the Companies Act only follows the reasoning of the earlier
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 311
[R. F. NARIMAN, J.]

judgments on the scope of Section 446 of the Companies Act. A
Significantly, given the object of Section 446 of the Companies Act, it
was held that a Section 138 proceeding is not a proceeding which has a
direct bearing on the collection or distribution of assets in the winding up
of a company. The ultimate conclusion of the court is contained in
paragraph 30, which reads as follows:
B
“30. Thus, there is a long line of decisions making the position
clear that the expression ‘suit or legal proceedings’, used in
Section 446(1) of the Companies Act, can mean only those
proceedings which can have a bearing on the assets of the
companies in winding-up or have some relation with the issue in
C
winding-up. It does not mean each and every civil proceedings,
which has no bearing on the winding-up proceedings, or criminal
offences where the Director of the Company is presently liable
for penal action.”
73. As the language, object, and context of Section 22(1) of the
D
SICA and Section 446(2) of the Companies Act are far removed from
Section 14(1) of the IBC, none of the aforesaid judgments have any
application to Section 14 of the IBC and are therefore distinguishable.
74. Shri Mehta then relied upon Power Grid Corporation of
India Ltd. v. Jyoti Structures Ltd., 2017 SCC OnLine Del 12189 :
E
(2018) 246 DLT 485, in which the Delhi High Court held that a Section
34 application to set aside an award under the Arbitration and Conciliation
Act, 1996 would not be covered by Section 14 of the IBC. This judgment
does not state the law correctly as it is clear that a Section 34 proceeding
is certainly a proceeding against the corporate debtor which may result
in an arbitral award against the corporate debtor being upheld, as a result F
of which, monies would then be payable by the corporate debtor. A
Section 34 proceeding is a proceeding against the corporate debtor in a
court of law pertaining to a challenge to an arbitral award and would be
covered just as an appellate proceeding in a decree from a suit would be
covered. This judgment does not, therefore, state the law correctly.
G
75. Shri Mehta then relied upon Inderjit C. Parekh v. V.K. Bhatt,
(1974) 4 SCC 313. This judgment dealt with a moratorium provision
contained in the Bombay Relief Undertakings (Special Provisions) Act,
1958. In the context of a prosecution under paragraph 76(a) of the
Employees’ Provident Fund Scheme, 1952 this Court held:
H
312 SUPREME COURT REPORTS [2021] 14 S.C.R.

A “6. The object of Section 4(1)(a)(iv) is to declare, so to say, a
moratorium on actions against the undertaking during the currency
of the notification declaring it to be a relief undertaking. By sub-
clause (iv), any remedy for the enforcement of an obligation or
liability against the relief undertaking is suspended and proceedings
which are already commenced are to be stayed during the
B
operation of the notification. Under Section 4(b), on the notification
ceasing to have force, such obligations and liabilities revive and
become enforceable and the proceedings which are stayed can
be continued. These provisions are aimed at resurrecting and
rehabilitating industrial undertakings brought by inefficiency or
C mismanagement to the brink of dissolution, posing thereby the
grave threat of unemployment of industrial workers. “Relief
undertaking” means under Section 2(2) an industrial undertaking
in respect of which a declaration under Section 3 is in force. By
Section 3, power is conferred on the State Government to declare
an industrial undertaking as a relief undertaking, “as a measure of
D
preventing unemployment or of unemployment relief”. Relief
undertakings, so long as they continue as such, are given immunity
from legal actions so as to render their working smooth and
effective. Such undertakings can be run more effectively as a
measure of unemployment relief, if the conduct of their affairs is
E unhampered by legal proceedings or the threat of such proceedings.
That is the genesis and justification of Section 4(1)(a)(iv) of the
Act.
7. Thus, neither the language of the statute nor its object would
justify the extension of the immunity so as to cover the individual
F obligations and liabilities of the directors and other officers of the
undertaking. If they have incurred such obligations or liabilities,
as distinct from the obligations or liabilities of the undertaking,
they are liable to be proceeded against for their personal acts of
commission and omission. The remedy in that behalf cannot be
suspended nor can a proceeding already commenced against them
G in their individual capacity be stayed. Indeed, it would be strange
if any such thing was within the contemplation of law. Normally,
the occasion for declaring an industry as a relief undertaking would
arise out of causes connected with defaults on the part of its
directors and other officers. To declare a moratorium on legal
H actions against persons whose activities have necessitated the
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 313
[R. F. NARIMAN, J.]

issuance of a notification in the interest of unemployment relief is A
to give to such persons the benefit of their own wrong. Section
4(1)(a)(iv) therefore advisedly limits the power of the State
Government to direct suspension of remedies and stay of
proceedings involving the obligations and liabilities in relation to a
relief undertaking and which were incurred before the undertaking
B
was declared a relief undertaking.
8. Para 38(1) of the Employees’ Provident Funds Scheme, 1952
imposes an obligation on “The employer” to pay the provident
fund contribution to the Fund within 15 days of the close of every
month. The Scheme does not define “Employee” but para 2(m)
says that words and expressions which are not defined by the C
Scheme shall have the meaning assigned to them in the Employees’
Provident Funds Act. Section 2(e)(ii) of that Act defines an
“Employer”, to the extent material, as the person who, or the
authority which, has the ultimate control over the affairs of an
establishment and where the said affairs are entrusted to a D
manager, managing director or managing agent, such manager,
managing director or managing agent. Thus the responsibility to
pay the contributions to the Fund was of the appellants and if they
have defaulted in paying the amount, they are liable to be
prosecuted under para 76(a) of the Scheme which says that if
any person fails to pay any contribution which he is liable to pay E
under the Scheme, he shall be punishable with six months’
imprisonment or with fine which may extend to one thousand
rupees or with both. Such a personal liability does not fall within
the scope of Section 4(1)(a)(iv) of the Act.”
Significantly, this Court did not hold that the moratorium provision F
would not extend to criminal liability. On the contrary, on the assumption
that it would so extend, a distinction was made between personal liability
of the Directors of the undertaking and the undertaking itself, stating
that as the “employer” under the Employees’ Provident Fund Scheme
would only refer to those individuals managing the relief undertaking G
and not the relief undertaking itself, the personal liability of such persons
would not fall within the scope of the moratorium provision. This judgment
also, therefore, does not, in any manner, support Shri Mehta.
76. Lastly, Shri Mehta relied upon Deputy Director, Directorate
of Enforcement Delhi v. Axis Bank, 2019 SCC OnLine Del 7854 : H
314 SUPREME COURT REPORTS [2021] 14 S.C.R.

A (2019) 259 DLT 500, and in particular, on paragraphs 127, 128, and 146
to 148 for the proposition that an offence under the Prevention of Money-
Laundering Act could not be covered under Section 14(1)(a). The Delhi
High Court’s reasoning is contained in paragraphs 139 and 141, which
are set out hereinbelow:
B “139. From the above discussion, it is clear that the objects and
reasons of enactment of the four legislations are distinct, each
operating in different field. There is no overlap. While RDBA has
been enacted to provide for speedier remedy for banks and
financial institutions to recover their dues, SARFAESI Act (with
added chapter on registration of secured creditor) aims at
C
facilitating the secured creditors to expeditiously and effectively
enforce their security interest. In each case, the amount to be
recovered is “due” to the claimant i.e. the banks or the financial
institutions or the secured creditor, as the case may be, the claim
being against the debtor (or his guarantor). The Insolvency Code,
D in contrast, seeks to primarily protect the interest of creditors by
entrusting them with the responsibility to seek resolution through
a professional (RP), failure on his part leading eventually to the
liquidation process.”
xxx xxx xxx
E
“141. This court finds it difficult to accept the proposition that the
jurisdiction conferred on the State by PMLA to confiscate the
“proceeds of crime” concerns a property the value whereof is
“debt” due or payable to the Government (Central or State) or
local authority. The Government, when it exercises its power under
F PMLA to seek attachment leading to confiscation of proceeds of
crime, does not stand as a creditor, the person alleged to be
complicit in the offence of money-laundering similarly not acquiring
the status of a debtor. The State is not claiming the prerogative to
deprive such offender of ill-gotten assets so as to be perceived to
be sharing the loot, not the least so as to levy tax thereupon such
G
as to give it a colour of legitimacy or lawful earning, the idea
being to take away what has been illegitimately secured by
proscribed criminal activity.”
This raison d’être is completely different from what has been
advocated by Shri Mehta. The confiscation of the proceeds of crime is
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 315
[R. F. NARIMAN, J.]

by the government acting statutorily and not as a creditor. This judgment, A
again, does not further his case.
WHETHER NATURAL PERSONS ARE COVERED BY
SECTION 14 OF THE IBC
77. As far as the Directors/persons in management or control of
the corporate debtor are concerned, a Section 138/141 proceeding B
against them cannot be initiated or continued without the corporate
debtor – seeAneeta Hada (supra). This is because Section 141 of the
Negotiable Instruments Act speaks of persons in charge of, and
responsible to the company for the conduct of the business of the
company, as well as the company. The Court, therefore, in Aneeta C
Hada (supra) held as under:
“51. We have already opined that the decision in Sheoratan
Agarwal [(1984) 4 SCC 352 : 1984 SCC (Cri) 620] runs counter
to the ratio laid down in C.V. Parekh [(1970) 3 SCC 491 : 1971
SCC (Cri) 97] which is by a larger Bench and hence, is a binding D
precedent. On the aforesaid ratiocination, the decision in Anil
Hada [(2000) 1 SCC 1 : 2001 SCC (Cri) 174] has to be treated as
not laying down the correct law as far as it states that the Director
or any other officer can be prosecuted without impleadment of
the company. Needless to emphasise, the matter would stand on
a different footing where there is some legal impediment and the E
doctrine of lex non cogit ad impossibilia gets attracted.”
xxx xxx xxx
“56. We have referred to the aforesaid passages only to highlight
that there has to be strict observance of the provisions regard F
being had to the legislative intendment because it deals with penal
provisions and a penalty is not to be imposed affecting the rights
of persons, whether juristic entities or individuals, unless they are
arrayed as accused. It is to be kept in mind that the power of
punishment is vested in the legislature and that is absolute in Section
141 of the Act which clearly speaks of commission of offence by G
the company. The learned counsel for the respondents have
vehemently urged that the use of the term “as well as” in the
Section is of immense significance and, in its tentacle, it brings in
the company as well as the Director and/or other officers who
are responsible for the acts of the company and, therefore, a
H
316 SUPREME COURT REPORTS [2021] 14 S.C.R.

A prosecution against the Directors or other officers is tenable even
if the company is not arraigned as an accused. The words “as
well as” have to be understood in the context.”
xxx xxx xxx
“58. Applying the doctrine of strict construction, we are of the
B
considered opinion that commission of offence by the company is
an express condition precedent to attract the vicarious liability of
others. Thus, the words “as well as the company” appearing in
the Section make it absolutely unmistakably clear that when the
company can be prosecuted, then only the persons mentioned in
C the other categories could be vicariously liable for the offence
subject to the averments in the petition and proof thereof. One
cannot be oblivious of the fact that the company is a juristic person
and it has its own respectability. If a finding is recorded against it,
it would create a concavity in its reputation. There can be situations
when the corporate reputation is affected when a Director is
D
indicted.
59. In view of our aforesaid analysis, we arrive at the irresistible
conclusion that for maintaining the prosecution under Section
141 of the Act, arraigning of a company as an accused is
imperative. The other categories of offenders can only be brought
E
in the drag-net on the touchstone of vicarious liability as the
same has been stipulated in the provision itself. We say so on
the basis of the ratio laid down in C.V. Parekh [(1970) 3 SCC
491 : 1971 SCC (Cri) 97] which is a three-Judge Bench decision.
Thus, the view expressed in Sheoratan Agarwal [(1984) 4 SCC
F 352 : 1984 SCC (Cri) 620] does not correctly lay down the law
and, accordingly, is hereby overruled. The decision in Anil Hada
[(2000) 1 SCC 1 : 2001 SCC (Cri) 174] is overruled with the
qualifier as stated in para 51. The decision in Modi Distillery
[(1987) 3 SCC 684 : 1987 SCC (Cri) 632] has to be treated to be
restricted to its own facts as has been explained by us
G
hereinabove.”
Since the corporate debtor would be covered by the moratorium
provision contained in Section 14 of the IBC, by which continuation of
Section 138/141 proceedings against the corporate debtor and initiation
of Section 138/141 proceedings against the said debtor during the
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 317
[R. F. NARIMAN, J.]

corporate insolvency resolution process are interdicted, what is stated in A
paragraphs 51 and 59 in Aneeta Hada (supra) would then become
applicable. The legal impediment contained in Section 14 of the IBC
would make it impossible for such proceeding to continue or be instituted
against the corporate debtor. Thus, for the period of moratorium, since
no Section 138/141 proceeding can continue or be initiated against the
B
corporate debtor because of a statutory bar, such proceedings can be
initiated or continued against the persons mentioned in Section 141(1)
and (2) of the Negotiable Instruments Act. This being the case, it is
clear that the moratorium provision contained in Section 14 of the IBC
would apply only to the corporate debtor, the natural persons mentioned
in Section 141 continuing to be statutorily liable under Chapter XVII of C
the Negotiable Instruments Act.
CONCLUSION
78. In conclusion, disagreeing with the Bombay High Court and
the Calcutta High Court judgments in Tayal Cotton Pvt. Ltd. v. State
of Maharashtra, 2018 SCC OnLine Bom 2069 : (2019) 1 Mah LJ 312 D
and M/s MBL Infrastructure Ltd. v. Manik Chand Somani, CRR
3456/2018 (Calcutta High Court; decided on 16.04.2019), respectively,
we hold that a Section 138/141 proceeding against a corporate debtor is
covered by Section 14(1)(a) of the IBC.
79. Resultantly, the civil appeal is allowed and the judgment under E
appeal is set aside. However, the Section 138/141 proceedings in this
case will continue both against the company as well as the appellants for
the reason given by us in paragraph 77 above as well as the fact that the
insolvency resolution process does not involve a new management taking
over. We may also note that the moratorium period has come to an end F
in this case.
Criminal Appeal arising out of SLP (Criminal) Diary
No.32585 of 2019
1. Delay condoned. Leave granted.
G
2. Shri S. Nagamuthu, learned Senior Advocate appearing on
behalf of the appellant, has made various submissions before us. Suffice
it to state that his first submission is that as a moratorium is imposed
against the corporate debtor w.e.f. 10.07.2017, the Section 138 complaint
that was preferred on 19.09.2017 must be quashed.
H
318 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 3. On the facts of this case, three cheques – for INR 25,00,000/-
dated 31.05.2017, for INR 25,00,000/- dated 30.06.2017, and for INR
23,51,408/- dated 31.07.2017 were issued by the appellant in favour of
the respondent. Before the cheques could be presented for payment, on
10.07.2017, the Adjudicating Authority admitted a petition by an operational
creditor under Section 9 of the IBC and imposed a moratorium under
B
Section 14. The three cheques were presented for payment, but were
returned citing “insufficient funds” as the reason on 04.08.2017. The
legal notice to initiate proceedings under Section 138 of the Negotiable
Instruments Act was issued by the respondent on 12.08.2017. As no
payment was forthcoming within the time specified, the respondent
C preferred a complaint against the corporate debtor alone on 19.09.2017.
4. The respondent did not dispute the aforesaid dates, only
reiterating that the High Court was right in dismissing a quash petition
filed by the appellant under Section 482 of the CrPC.

D 5. Since the complaint that has been filed in the present case is
against the corporate debtor alone, without joining any of the persons in
charge of and responsible for the conduct of the business of the corporate
debtor, the complaint needs to be quashed, given our judgment in Civil
Appeal No.10355 of 2018. The judgment under appeal, dated 02.04.2019,
is therefore set aside and the appeal is allowed.
E
Criminal Appeals arising out of SLP (Criminal) Nos.10587/
2019, 10857/2019, 10550/2019, 10858/2019, 10860/2019, 10861/
2019, 10446/2019.
1. Leave granted.
F
2. On the facts of these cases, all the complaints filed by different
creditors of the same appellant under Section 138 read with Section 141
of the Negotiable Instruments Act were admittedly filed long before the
Adjudicating Authority admitted a petition under Section 7 of the IBC
and imposed moratorium on 19.03.2019.
G
3. Given our judgment in Civil Appeal No.10355 of 2018, the said
moratorium order would not cover the appellant in these cases, who is
not a corporate debtor, but a Director thereof. Thus, the impugned order
issuing a proclamation under Section 82 CrPC cannot be faulted with on
this ground. The appeals are therefore dismissed.
H
P. MOHANRAJ & ORS. v. M/S. SHAH BROTHERS ISPAT PVT. LTD. 319
[R. F. NARIMAN, J.]

Criminal Appeal arising out of SLP (Criminal) Nos.2246- A
2247 of 2020
1. Leave granted.
2. In this case, the two complaints dated 12.03. 2018 and
14.03.2018 under Section 138 read with Section 141 of the Negotiable
Instruments Act were filed by the respondent against the corporate debtor B
along with persons in charge of and responsible for the conduct of business
of the corporate debtor. On 14.02.2020, the Adjudicating Authority
admitted a petition under Section 9 of the IBC against the corporate
debtor and imposed a moratorium. The impugned interim order dated
20.02.2020 is for the issuance of non-bailable warrants against two of C
the accused individuals.
3. Given our judgment in Civil Appeal No.10355 of 2018, the
moratorium provision not extending to persons other than the corporate
debtor, this appeal also stands dismissed.
Criminal Appeal arising out of SLP (Criminal) No.2496 of 2020 D
1. Leave granted.
2. In the present case, a complaint under Section 138 read with
Section 141 of the Negotiable Instruments Act was filed by Respondent
No.1 against the corporate debtor together with its Managing Director
E
and Director on 15.05.2018. It is only thereafter that a petition under
Section 9 of the IBC, filed by Respondent No.1, was admitted by the
Adjudicating Authority and a moratorium was imposed on 30.10.2018.
The impugned judgment dated 16.10.2019 held that a petition under Section
482, CrPC to quash the said proceeding would be rejected as Section 14
of the IBC did not apply to Section 138 proceedings. F
3. The impugned judgment is set aside in view of our judgment in
Civil Appeal No.10355 of 2018, and the complaint is directed to be
continued against the Managing Director and Director, respectively.
Criminal Appeal arising out of SLP (Criminal) No.3500 of 2020
G
1. Leave granted.
2. The complaint in the present case was filed by the respondent
on 28.07.2016. An application under Section 7, IBC was admitted by the
Adjudicating Authority only on 20.02.2018 and moratorium imposed on
the same date. The impugned judgment rejected a petition under Section H
320 SUPREME COURT REPORTS [2021] 14 S.C.R.

A 482 of the CrPC on the ground that Section 138 proceedings are not
covered by Section 14 of the IBC.
3. The impugned judgment is set aside in view of our judgment in
Civil Appeal No.10355 of 2018, and the complaint is directed to be
continued against the appellant.
B Criminal Appeal arising out of SLP (Criminal) No.5638-5651/
2020, 5653-5668/2020
Leave granted.
In these appeals, the appellants have approached us directly from
C the learned Magistrate’s impugned orders. The learned Magistrate has
held that Section 14 of the IBC would not cover proceedings under
Section 138 of the Negotiable Instruments Act. As a result, warrants of
attachment have been issued under Section 431 read with Section 421
CrPC against various accused persons, including the corporate debtor
and persons who are since deceased. While setting aside the impugned
D judgments, given our judgment in Civil Appeal No.10355 of 2018, we
remand these cases to the Magistrate to apply the law laid down by us in
Civil Appeal No.10355 of 2018, and thereafter decide all other points
that may arise in these cases in accordance with law.
Writ Petition (Criminal) Nos.330/2020, 339/2020, Writ
E Petition (Civil) No.982/2020, Writ Petition (Criminal) Nos.297/
2020, 342/2020, Writ Petition (Civil) No.1417/2020, 1439/2020,
18/2021, Writ Petition (Criminal) No.9/2021, 26/2021.
1. All these writ petitions have been filed under Article 32 of the
Constitution of India by erstwhile Directors/persons in charge of and
F responsible for the conduct of the business of the corporate debtor. They
are all premised upon the fact that Section 138 proceedings are covered
by Section 14 of the IBC and hence, cannot continue against the corporate
debtor and consequently, against the petitioners.
2. Given our judgment in Civil Appeal No.10355 of 2018, all these
G writ petitions have to be dismissed in view of the fact that such
proceedings can continue against erstwhile Directors/persons in charge
of and responsible for the conduct of the business of the corporate debtor.

Divya Pandey Matters disposed of.
H