AI Structured Summary
Not yet generated for this judgment
Judgment
Ch.S.R.K. Prasad, J.—The petitioners invoke the inherent powers of this court u/s 482 of the Criminal Procedure Code, 1973, to quash the proceedings initiated against them in C. C. No. 475 of 1999 on the file of the XXIII Metropolitan Magistrate, Hyderabad.
The brief facts of the case are that the first respondent-company is said to be engaged in manufacture and sale of ferro silicon. The first petitioner approached the first respondent-company and placed orders for supply of ferro silicon and during the course of business transactions in discharge of the liability and legal obligation, the first petitioner-company issued four cheques being Nos. 2192, 21923, 21924 and 21924 amounting to Rs. 3,85,962 when the said cheques were presented in AN2 Grindlays Bank, G. C. Road, Ahmedabad by the first respondent-company the same were returned with an endorsement "payment stopped by the drawer" and to that extent a memo dated October 17, 1998, was received by the first respondent-company. Thereafter the first respondent-company seems to have issued notices dated October 27, 1998 and October 30, 1998 calling upon the petitioners to make payment covered by the above cheques. It is alleged in the complaint that in spite of the notices, the amounts were not paid and thereafter the first respondent-company filed the complaint which was taken cognizance u/s 138 of the Negotiable Instruments Act by the XXIII Metropolitan Magistrate, which was numbered as C. C. No. 475 of 1999.
Learned counsel for the petitioners assails the proceedings initiated against them contending that the proceedings u/s 22A of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short "the SICA"), have been issued in respect of the first petitioner-company and therefore, it is a bar for launching criminal prosecution. Secondly, learned counsel for the petitioners contend that the directors of the first petitioner-company cannot be made liable as there is no specific allegation against them and the drawer of the cheques alone is liable and therefore, he seeks quashing of the proceedings initiated against the petitioner.
On the other hand, learned counsel for the first respondent-company contends that it has not been mentioned in the complaint that regarding the BIFR proceedings in respect of the first petitioner-company and they referred only about the proceedings u/s 22 of the SICA. It is further contended by learned counsel for the first respondent-company that the first petitioner-company did not stop its business and that they are making purchases and running the business as is being done in the ordinary course which is violative of the orders passed by the SICA.
Learned counsel for the first respondent-company placed reliance on a decision of this court in Avon Industries Ltd. v. Integrated Finance Co, ltd. [2001] 105 Comp Cas 259 ; [2001] 1 ALD 461 to the effect that the directors of the company are liable to pay. Learned counsel also places reliance on another decision of this court in Renewable Energy Systems Ltd. v. State [2001] 2 ALT ( 440 ; [2002] 111 Comp Cas 786 which is also to the same effect.
Learned Public Prosecutor on the other hand contends that it is not a fit case where the inherent powers of this court u/s 482 of the Criminal Procedure Code can be exercised and the matter has to be left to the court to be decided on evidence.
Adverting to the said contention, learned counsel for the petitioners placing reliance on a decision of the Supreme Court in Kusum Ingots and Alloys Ltd., etc. Vs. Pennar Peterson Securities Ltd. and Others, , contend that complaint is barred and has to be quashed. In para. 15 of the judgment of the apex court held as under (pages 763 and 764) :
"The next question for consideration is whether under the provisions of the Sick Industrial Companies (Special Provisions) Act there was any legal impediment for payment of the amount for which the cheques were drawn and for that reason the appellants cannot be taken to have committed an offence u/s 138 of the Negotiable Instruments Act. A bare reading of Section 22 of the Sick Industrial Companies (Special Provisions) Act makes the position clear that during pendency of an inquiry u/s 16 or during the preparation of a scheme referred to u/s 17 or during implementation of a sanctioned scheme or pendency of an appeal u/s 25, no proceedings for winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a receiver in respect thereof and no suit for the recovery of money or for enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company, shall lie or be proceeded with further, except with the consent of the Board or, the Appellate Authority, as the case may be. The section only deals with proceedings for recovery of money or for enforcement of any security or a guarantee in respect of any loans or advance granted to the company and a proceeding for winding up of the company. The section does not refer to any criminal proceeding. In BSI Ltd. and Another, etc. Vs. Gift Holdings Pvt. Ltd. and Another, etc., -Criminal Appeal No. 847 of 1999, we held that pendency of proceeding u/s 22 of the Sick Industrial Companies (Special Provisions) Act alone is not sufficient to get absolved from the liability u/s 138 of the Negotiable Instruments Act. . .
In a case in which the BIFR has submitted its report declaring a company as ''sick'' and has also issued a direction u/s 22A restraining the company or its directors not to dispose of any of its assets except with consent of the Board then the contention raised on behalf of the appellants that a criminal case for the alleged offence u/s 138 of the Negotiable Instruments Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright. Whether the contention can be accepted or not will depend on the facts and circumstances of the case. Take for instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BIFR u/s 22A was passed against the company then it cannot be said that the offence u/s 138 of the Negotiable Instruments Act was completed. In such a case it may reasonably be said that the dishonouring of the cheque by the bank and failure to make payment of the amount by the company and/or its directors is for reasons beyond the control of the accused. It may also be contended that the amount claimed by the complainant is not recoverable from the assets of the company in view of the ban order passed by the BIFR. In such circumstances it would be unjust and unfair and against the intent and purpose of the statute to hold that the directors should be compelled to face trial in a criminal case."
A close scrutiny of para. 19 of the above judgment discloses that the Supreme Court has categorically held that when a direction is issued u/s 22A by the BIFR a criminal case or the alleged offence u/s 138 of the Negotiable Instruments Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative and has to be decided on facts and circumstances of each case. Having observed that it bars the maintainability of the complaint, the Supreme Court has relegated the matter to the magistrate for considering all those things as can be seen from the following observation made by the Supreme Court in para. 20 of its judgment (page 765) :
"Except in the circumstances noted above we do not find any good reason for accepting the contentions raised by learned counsel for the appellants in favour of the prayer for quashing of the criminal proceedings or for keeping the proceedings in abeyance. It will be open to the appellants to place relevant materials in this regard before the learned magistrate before whom the cases are pending and the learned magistrate will examine the matter keeping in mind the discussions made in this judgment. We make it clear that we have not considered the question whether in the facts and circumstances of a particular case Section 138 of the Negotiable Instruments Act is attracted or not, for that is a question to be considered by the court at the appropriate stage of the case in the light of the evidence on record. The appeals are disposed of on the terms aforesaid."
In view of the principles laid down by a learned judge of this court in Avon Industries Ltd. v. Integrated Finance Co. Ltd. [2001] 105 Comp Cas 259 ; [2001] 1 ALD 461 and Renewable Energy Systems Ltd. v. State [2001] 2 ALT 440 ; [2002] 111 Comp Cas 786, the matter has to be decided only after letting in evidence, as there are allegations made in the complaint about giving of consent by all the directors for issuing the cheques. In view of the same, there is no need to give a specific finding now about the liability of the directors and relegate the same to be decided by the magistrate.
The petitioners have also produced a copy of the BIFR order. Para. 8 of the order reads as under :
"The company shall not alienate any of its assets other than those current assets whose transactions are necessitated in the ordinary course of business of the company in terms of Section 22A of the Act."
This fact has not been mentioned in the complaint and the documents are produced only before the High Court while invoking the inherent power of this court u/s 482 of the Criminal Procedure Code. The magistrate has no opportunity to look into these documents to decide at the time of taking cognizance of the offence or entertaining complaint and the magistrate is deprived of the opportunity of looking into the documents at the time of filing the complaint. Therefore, it cannot be said that there is illegality or irregularity in the order of the learned magistrate. In view of the new facts coming into light, viz., passing of orders u/s 22A of the SICA and also pendency of proceedings before the BIFR against the first petitioner-company, they have to be left open as the magistrate has to decide the same on the strength of the material placed before him. Hence, the petitioners are at liberty to place relevant materials before the learned magistrate before whom the case is pending. The learned magistrate shall examine the matter keeping in view the discussion made by me in this order and also the observations of the Supreme Court made in its judgment cited Kusum Ingots and Alloys Ltd., etc. Vs. Pennar Peterson Securities Ltd. and Others, , as well as the observations made by this court in its two judgments (Avon Industries Ltd.''s case [2001] 105 Comp Cas 259 ; [2001] 1 ALD 461 and Renewable Energy Systems Ltd.''s case [2001] 2 ALT 440 ; [2002] 111 Comp Cas 786).
Before concluding, it is necessary to give a direction to all the magistrates in the State to insist upon mentioning of the fact of sickness of the unit and applying before the BIFR as a pre-condition for entertaining the complaint, so that this kind of arguments may not crop up at the stage of exercising the inherent powers of this court u/s 482 of the Criminal Procedure Code. I also state whenever the magistrate receives a complaint, he shall insist upon the complainant to mention specifically in the complaint that the company is running the business and it has not applied for declaration as a sick unit, when the provisions of the Sick Industrial Companies (Special Provisions), 1985 and it has not been wound up so that the ordeal and the circumstances under which this court is placed at this stage can be avoided at the time of judging of the orders passed.
With the above observations, this criminal petition is dismissed. However, the lower court shall consider the above aspects and dispose of the case by taking up the case on day-to-day basis.