PREM CHAND GUPTA Vs. STATE

JUDGEMENT

(1.) Vide this common judgment I shall dispose of both the petitions referred above. The petitioner is Managing Director of Elite Appliances Ltd. (hereinafter referred as the Company), a company incorporated under the provisions of Companies Act, 1956. A reference was made to Board of Industrial and Financial Reconstruction (hereinafter referred as BIFR) under Section 15 of Sick Industrial Companies (Special Provision) Act, 1985 (hereinafter referred as SICA), on the ground that in the opinion of the Board of Directors, the company had become a Sick Industrial Company. Vide order dated 1st December 1998, BIFR nominated UPFC as the Operating Agency to work out the rehabilitation scheme for the company and also directed that neither the company nor any of the involved party should dispose of/alienate any of the assets of the company. On 4th October 2002 BIFR recommended that the company be wound up. Vide order dated 13th December 2002, passed in Company Petition 89 of 1997, this Court directed the company to be wound up and appointed Official Liquidator as Provisional Liquidator for the company and instructed him to take over the attached property of the company as well as its accounts books and records.

(2.) Complaints under Section 138 of Negotiable Instruments Act was filed by respondent No.2 Delhi Safe Deposit Company Ltd. against the petitioner in his capacity as Managing Director of the company. It was alleged in the complaints that two cheques, both dated 3rd February 1999, which are subject matter of Crl.M.C. 145/2009 and two cheques dated 3rd November 1998, which are subject matter of Crl.M.C. 146/1999, when presented by the banker of the petitioner, were dishonoured and payment was not made to the complainant despite issue of Demand Notice dated 15th February 1999.

(3.) The petitioner having been summoned under Section 138 of Negotiable Instruments Act, he has filed these petitions seeking quashing of the complaints primarily on the ground that the alleged offence was completed after the commencement of the proceedings under the provisions of SICA and on account of freezing of the assets of the company, it was not permissible for the bank to honour the cheque nor could he have made payment to the complainant from the funds of the company on that date.