V.K. JAIN Vs. RANBAXY LABORATORIES LTD

JUDGEMENT

(1.) The present petition is filed by the petitioner under Section 482 of the Cr.PC, impugning the summoning order dated 06.11.2000 passed by the learned Metropolitan Magistrate in Criminal Com- plaint No. 819/1/04 filed by the respondent under Section 138 of the Negotiable Instruments Act.

(2.) Briefly stated, the admitted facts of the case are that on 31.03.1998, M/s Dee Pharma Ltd., accused No. 1 issued five cheques for Rs. 4,24,832/-, out of which four cheques were for Rs. 1 lac each and the fifth cheque was for Rs. 24,832/-. It is the case of the respondent/complainant that when the aforesaid cheques were presented to its banker on 25.08.1998 for realization, they were dishonoured and returned to the complainant alongwith a memo dated 27.08.1998 with the remarks "Exceeds Arrangement". As pert the complainant, it served a notice dated 15.09.1998 upon accused No. 1 and the petitioner/accused No. 2, the Managing Director of accused No. 1/company under Section U of the Negotiable Instruments Act. The said notice is stated to have been sent through Regd. AD Post. As per the complainant, even after receipt of the aforesaid notice, neither accused No. 1/company nor accused No. 2/petitioner replied to the said notice or made any payment. As a result, the complainant filed the aforesaid complaint on 31.10.1998.

(3.) It is the contention of the counsel for the petitioner/accused No. 2 that he had filed an application under Section 204 of the Cr. PC before the learned Metropolitan Magistrate stating inter alia that the complaint filed by the respondent was not maintainable, in view of the embargo placed by the Board for Industrial, trial and- Financial Reconstruction (BIFR) in terms of its order dated 11.09.1998 in case No. 115/98 in respect of M/s Dee Pharma Ltd. He submits that despite the aforesaid position, the application of the petitioner was dismissed as not maintainable and the matter was directed to be proceeded with further. In support of his submission that the application filed by the petitioner under Section 204 of the Cr.PC ought to have been allowed, counsel for the petitioner relies on an order dated 11.09.1998 passed by the BIFR, as per which, inter alia accused No. 1/company was declared to be a sick industrial company in terms of Section 3(1)(o) SICA According to him, as accused No. 1/company and its promoters had been directed under Section 22A of the SICA not to dispose of any fixed or current assets of the company without the consent of the BIFR, the petitioner could not have been called upon to make payment of the four cheques to the respondent/complainant, as such payments were beyond its control and authority.