OMESH KESHAV KARNIK Vs. BOARD FOR INDUSTRIAL AND FINANCIAL RECONSTRUCTION MINISTRY OF FINANCE GOVERNMENT OF INDIA

JUDGEMENT

(1.) Heard the learned Advocate for the petitioner. The prayer in the petition is for quashing process issued against the petitioner under section 138 of the Negotiable Instruments Act in Case No.1387/SS/2005 pending before the 30th Metropolitan Magistrate s Court at Kurla and number of other cases mentioned in prayer clause (b) of the petition.

(2.) The petitioner is Managing Director of Phoenix Fine Chem Pvt.Ltd., which is a sick company. This petition is filed by the petitioner in the capacity of Managing Director of the said Company. The Respondents Nos. 2 to 4 have filed complaints against the petitioner under section 138 of the Negotiable Instruments Act and as per this petition, there are number of complaints against the petitioner, as described in paras 3, 4, 5 and 6 of the petition. The contention of the petitioner is that the complainants were aware at the time of the transaction with the petitioner that the petitioner company is declared as a Sick Industrial Company under section 3(1)(o) of the SICA and therefore, he has filed this petition for recalling a process issued at the instance of the respondents Nos. 2 to 4 in all those matters.

(3.) The learned counsel for the petitioner in this regard relied upon the judgment of the Supreme Court reported in 745 (2000) 2 Supreme Court Cases 745, the case of Kusum Ingots & Alloys Ltd., vs. Pennar Peterson Securities Ltd. & Ors.. Our attention was drawn by her, in particular, at paragraph Nos. 9,15,19 and 20 of the Supreme Court judgment. The said paragraphs are reproduced below :-