KIRTI PREM RAJ JAIN Vs. VED PRAKASH GUPTA

JUDGEMENT

(1.) ON complaint of respondent, Judicial Magistrate First Class, Gwalior, in his case Ved Prakash Gupta v. Kirti Premraj Jain [criminal Case No. 67 of 2000] has taken cognizance of an offence under Section 406 of the Indian Penal Code (IPC for short ). Such cognizance was taken after record of statement of Vedprakash Gupta, the respondent, under Section 200 of the Code of Criminal Procedure (Code for short) and one of his witness under Section 202 of the said Code.

(2.) IN this petition, under Section 482 of the Code, petitioner seeks quashment of this impugned order claiming that a direction under Section 22a of the Sick Industrial Companies (Special Provisions) Act, 1985, not to dispose of its asset has been given by Board for Industrial and Financial Reconstruction (BIFR for short ). On 21-5-1999, the petitioner-Company is debarred from making payments. As per petitioner, the respondent should have brought these facts to the knowledge of the Magistrate.

(3.) THE Hon. Apex Court in Kusum Ingots and Alloys Ltd. v. Pennar Peterson Securities Ltd. [2000] 2 SCC 745 and B. S. I. Ltd v. Gift Holidays (P.) Ltd. [2000] 2 SCC 737 held that merely because a Company is declared a sick unit, prosecution under Sections 138, 141 and 142 of the Negotiable Instruments Act and protanto for any other offence is not barred. A. P. High Court in B. Mohan Krishnan v. Union off India Vl 1995 (2) Crimes 795, has held that no permission of the B. I. F. R. is necessary. The only condition when a prosecution can be barred, can well be understood from the following passage in the Kusum Ingots and Alloys Ltd, (supra) :"