Criminal Writ Petition No. 1609 of 2014. Case: Ms. Kitply Industries Ltd., Assam Vs State of Maharashtra. High Court of Bombay (India)
| Case Number | Criminal Writ Petition No. 1609 of 2014 |
| Counsel | For Petitioner: A. P. Mundargi, Senior Counsel a/w Mr. Ganesh Gole i/b S. Rashmi Gagwani, Advs. and For Respondents: Amar Talreja and Anand Talreja, A. R. Patil, APP, Advs. |
| Judges | Revati Mohite Dere, J. |
| Issue | Sick Industrial Companies (Special Provisions) Act (1 of 1986) - Sections 15, 22A; Negotiable Instruments Act (26 of 1881) - Sections 138, 142 |
| Citation | 2015 CriLJ 723 |
| Judgement Date | September 05, 2014 |
| Court | High Court of Bombay (India) |
Judgment:
-
This petition, is directed against the order issuing process, dated 29th April, 2013, passed by the learned Magistrate as against the petitioners under Section 138 r/w 141 of the Negotiable Instruments Act. The said order issuing process was confirmed in Revision by the learned Ad hoc District Judge, vide Judgment and Order dated 3rd April, 2014.
-
A few facts as are necessary to decide the present petition are as under:-
The respondent No. 2 (original complainant) has filed a criminal complaint, being C.C.No. 312/SS/2013 in the Court of learned Judicial Magistrate First Class, Ulhasnagar, Kalyan, alleging offences punishable under Section 138 r/w Section 141 of the Negotiable Instruments Act, 1881. According to the respondent No. 2 - complainant, on the basis of the representations and assurances made by the petitioner No. 1 - company, through its Directors/Officers, the respondent No. 2 discounted bills of the petitioner No. 1- company and advanced consideration to the petitioner No. 1 - company, from time to time. It is stated that initially the petitioners, had agreed to make payments within 60 days and the discounting charges were fixed at 5% but later, at the request of the petitioners, respondent No. 2, granted time to make payment, within 120 days at a penal interest @ 2.5% per month, for the delay in payments. According to the respondent No. 2, on 31st March, 2012, the principal bill discounting amount stood at Rs. 4,00,00,000/- and the discounted charges and additional charges accounted to Rs. 1,40,23,529/- i.e. the total amount was Rs. 5,40,23,529/-. The said amount is stated to have been confirmed by the petitioner No.1- company, vide letters dated 12th March, 2012 and 26th March, 2012. As on 31st March, 2012, the bill discounting charges on the principal amount of Rs. 4,00,00,000/- accounted to Rs. 30,00,000/- and accordingly the petitioner No. 1- company issued post dated cheques of 2,50,000/- each. According to the respondent No. 2 - complainant, pursuant to the demand made to the petitioners, for payment and to clear the subsisting liability of the respondent No. 2, against the legally enforceable debt, the petitioner No. 3, issued two cheques dated 30th September, 2012 and 29th September, 2012 for an amount of Rs. 5,40,23,529/- and Rs. 2,50,000/- respectively. On the assurances made by the petitioners, that the aforesaid two cheques will be honoured on presentation, the same were received by the respondent No. 2. Both the aforesaid cheques were presented by the respondent No. 2 - complainant, in the HDFC Bank, Ulhasnagar Branch on or about 10th December, 2012. However, the said cheques were returned unpaid by the bankers of the petitioner - company, vide cheque return memo dated 11th December, 2012, with the remark 'Payment Stopped by the Drawer'. The said intimation recording dishonour of the cheques was received by the respondent No. 2 from their bankers vide memo dated 12th December, 2012, pursuant to which, respondent No. 2 issued the statutory notice dated 31st December, 2012, calling upon the petitioners to make payment against the dishonoured cheques, within a period of 15 days from the date of receipt of the notice. The petitioners are stated to have replied to the said statutory notice, through their Advocate, raising certain defences, which was counter replied to, by the respondent No. 2. As the petitioners failed to make payment of the dishonoured cheques, a complaint was filed by the respondent No. 2 in the Court of learned Judicial Magistrate First Class, Ulhasnagar, Kalyan, alleging offences punishable under Sections 138 r/w 141 of the Negotiable Instruments Act, 1881.
It may be noted, that the petitioner No. 1 company had filed a reference with the Board for Industrial and Financial Reconstruction (hereinafter referred to as 'the BIFR'), under Section 15(1) of the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter referred to for the sake of brevity as 'the SICA'). In the said reference made by the petitioner No. 1 - Company, a Miscellaneous Application No. 341 of 2012, came to be preferred by the 'Wood Workers Union' of the petitioner No. 1- company, requesting the BIFR to restrain the petitioner No. 1 company from making any payments to the unsecured creditors, without the specific permission of the Board (BIFR); and to direct the company to pay the dues of the members of the Wood Workers Union. The BIFR observed that the Company has not yet been declared sick by the board, however, after considering the submissions, passed certain directions, and one of the direction was that 'the company is restrained from making any payment to unsecured creditors without the approval of the Board till the next date of hearing.' The aforesaid direction was given by the BIFR on 21st September, 2012, on the application preferred by the Wood Workers Union. The said order was extended from time to time.
-
The short question, that arises for consideration in the present petition, is whether the direction/order dated 21st September, 2012, passed by the BIFR in a Miscellaneous Application preferred by the 'Wood Workers Union', restraining the petitioner No. 1, from making any payment to the unsecured creditors without its approval, created a legal impediment, restraining the petitioners from making payment to the respondent No. 2 and consequently debarring the respondent No. 2, from filing a complaint under Section 138 of the Negotiable Instruments Act, as against the petitioners.
-
Mr. Mundargi, learned senior counsel for the petitioners contended that despite the fact, that the BIFR vide direction/order dated 21st September, 2012, had restrained the petitioners from making any payment to the unsecured creditors, the respondent No. 2, an unsecured creditor had presented the aforesaid two cheques dated 30th September, 2012 and 29th September, 2012 on 10th December, 2012, during the existence of the said direction dated 21st September, 2012. He submitted that the said direction/order was brought to the notice of the respondent No. 2, before the cheques were presented by respondent No. 2 with their Bankers.
-
Mr. Mundargi further submitted that the petitioners had informed the respondent No. 2 of the said direction/order passed on 21st September, 2012 vide letter dated 21st September, 2012 i.e. on the very same day and on 8th October, 2012, a copy of the said order was sent to the respondent No. 2. He submitted that the petitioners had also informed their bankers Axis Bank Limited vide letter dated 24th September, 2012 that they had issued the aforesaid two cheques for an amount of Rs. 5,40,23,529/- and Rs. 2,50,000/- to one of their unsecured creditors, M/s. Dhalumal Holdings respondent No. 2, which were yet to be presented for clearance. The petitioners requested their bankers to make stop payment of the aforesaid cheques, if presented for encashment, in compliance of the direction/order dated 21st September, 2012.
-
Mr. Mundargi, contended that the respondent No. 2 had infact filed an application seeking vacating of the direction/order passed by the BIFR dated 21st September, 2012, by filing an application on 4th January, 2013, which fact has been suppressed by the respondent No. 2 in its complaint. He submitted that in view of the direction/order dated 21st September, 2012, passed by the BIFR, the petitioners were restrained from making any payment to the unsecured creditors and as such no criminal prosecution could have been initiated under Section 138 of the Negotiable Instruments Act, as against the petitioners. He submitted that even otherwise, the aforesaid cheques that were given, were only for servicing of the interest component and were given by way of security, as is reflected in the reply to the statutory notice sent by the respondent No. 2. He submitted that in the reply dated 14th January, 2013, it was clearly stated that the cheques were given as security and that the petitioners were not liable to make any payments. Mr. Mundargi also submitted that the respondent No. 2 had suppressed the proceedings pending before the BIFR, though being aware of the same.
-
According to Mr.Mundargi...
To continue reading
Request your trial