IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1243 OF 2008 Kothari Global Ltd & Anr. .. Petitioners Vs. The State of Maharashtra & Anr. .. Respondents Mr.Benny Joseph with Mr.Mahesh Londhe i/by Sanjay Udeshi for the petitioners. Smt.P.P.Shinde, A.P.P for the State Mr.Yashpal Thakur i/by M/s.Paras Kuhad & Associates for respondent no.2. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 26th September 2008. : 26th September 2008. : 26th September 2008. P.C.: . Heard learned counsel appearing for the petitioners and the learned counsel appearing for the 2nd respondent. The petitioners have been arraigned as accused in a complaint filed by the 2nd respondent for an offence under section 138 read with section 141 of the Negotiable Instruments Act, 1881. The process was issued by the learned Magistrate. A revision application was filed before the Sessions Court for challenging the order of issue of process. The revision application has been dismissed and petitioners have been directed to pay costs of Rs.5,000/-. 2 2. The first submission is that there was an order passed by B.I.F.R by which a restraint was imposed against the transfer of the assets of the 1st petitioner Company. The submission of the learned counsel appearing for the petitioner is that in view of the said order of the B.I.F.R, the petitioners could not have been prosecuted. The submission is that in any case there was no occasion for the Sessions Court for awarding costs of Rs.5,000/-. The learned counsel appearing for the 2nd respondent has placed reliance on a decision of this Court in the case of Aefloat Textiles (India) Ltd and another Vs. Boghara Polyfab Pvt. Ltd. (2008 Criminal Law Journal 1494) and submitted that the issue raised by the petitioners is already decided. He submitted that though the learned Judge may not have recorded the reasons for awarding heavy costs, the reason for awarding costs is the conduct of the petitioners which is apparent from the impugned order. 3. I have carefully considered the submissions. The learned counsel for the petitioners has relied upon the order of B.I.F.R. The relevant part of the order reads thus: 3 "vi) The company/promoters would give an undertaking immediately not to dispose of any fixed or current assets of the company without the consent of the BIFR. In case, the company was running the current assets could be drawn to the extent required for day-to-day operations, proper accounts of which would be maintained." 4. In the decision of this Court in the case of Aefloat Textiles (India) Ltd (supra), the prayer for quashing the complaint under section 138 of the said Act of 1881 was made on the basis of a direction of BIFR which was identically worded. Relying upon the decision of the Apex Court in the case of M/s.Kusum Ignots and Alloys Ltd V. Pennar Peterson Securities Ltd and others (2000 Criminal Law Journal 1464), the learned Judge of this Court held that the aforesaid direction is a direction issued under section 22 of the Sick Industrial Company (Special Provisions) Act, 1985 and therefore, no legal impediment was created by the said order. Relevant part of paragraph of the said decision reads thus: ".... In any case, as held by the Apex Court, 4 Section 22 of the SICA does not create any legal impediment for instituting and proceeding with a criminal case under Section 138 of NI Act against a company or its Directors. At the end of the trial of such a case, if the accused are held guilty and they are directed to pay compensation and also sentenced to suffer imprisonment, they have the remedy of submitting an application immediately before the learned Metropolitan Magistrate and pray for either being released on bail by staying the order of sentence or a blanket stay to the order of conviction and sentence as well as payment of compensation based on the BIFR order and it is for the trial Court or for that matter for the Lower Appellate Court to consider to stay the order of conviction and sentence. The mere passing of the order by BIFR under section 22 of the SICA cannot be a reason to quash the proceedings in the criminal case filed under section 138 of the NI Act." 5. In view of what is held by this Court, no case is made out for interfering with the order of issue of 5 process. 6. As regards second submission, no reasons whatsoever have been recorded by the learned Additional Sessions Judge for directing the petitioners to pay costs of Rs.5,000/- to the 2nd respondent. Therefore, that part of the order will have to be quashed and set aside. 7. Hence, I pass the following order: (i) The order of the learned trial Judge of issue of process is confirmed. (ii) All contentions of the petitioners and 2nd respondent on merits of the complaint are expressly kept open. (iii) The direction issued by the Additional Sessions Judge in clause (2) of the operative part of the impugned order to the extent to which it directs the petitioners to pay Rs.5,000/- is quashed and set aside. 6 (A.S. Oka,J)