TMI Blog2002 (6) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 21922, 21923, 21924 and 21925 amounting to Rs. 3,85,962 when the said cheques were presented in ANZ 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 upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the business as is being done in the ordinary course which is violative of the orders passed by the SICA. 5. 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 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 [2002] 111 Comp. Cas. 786 which is also to the same effect. 6. Learned Public Prosecutor on the other hand contends that it is not a fit case where the inherent powers of this court under section 482 of the Criminal Procedure Code can be exercised and the matter has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. Gift Holdings (P.) Ltd. [2000] 100 Comp. Cas. 436 (SC) Criminal Appeal No. 847 of 1999, we held that pendency of proceeding under section 22(1) of the Sick Industrial Companies (Special Provisions) Act alone is not sufficient to get absolved from the liability under section 138 of the Negotiable Instruments Act. ****** . . . In a case in which the BIFR has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lose scrutiny of para 19 of the above judgment discloses that the Supreme Court has categorically held that when a direction is issued under section 22A by the BIFR a criminal case or the alleged offence under section 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 : "Except in the circumstances noted above we do not find any go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 under section 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 comi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
