VAMAN RAO, J. ( 1 ) HEARD both sides. ( 2 ) IN these petitions, the proceedings in the relevant calendar cases in which the petitioners are sought to be prosecuted for an offence under Section 138 of the negotiable Instruments Act are sought to be quashed mainly on the ground that the accused in these cases being companies, a reference under Section 15 of the Sick industrial Companies (Special Provisions) act, 1985 (for short the Act ) having been made and enquiry in respect of these companies being pending under Section 16 of the Act, the proceedings to prosecute these companies cannot be continued in view of Section 22 of the said Act. ( 3 ) IT is not disputed that in all these cases, a reference has been made in respect of the petitioner companies to the Board for industrial and Financial Reconstruction (BIFR) under Section 15 of the Act for determining the company as a Sick Industry. Once a reference has been made under section 15, the Board is empowered to enquiry in such manner as it may deem fit in respect of the sick industry under Section 16 of the Act. It is also not disputed that in these cases, enquiry under Section 16 of the Act can be said to be pending. ( 4 ) SECTION 22 (1) of the Act on which the learned Counsel for the petitioners rely reads as follows:"22. Suspension of Legal Proceedings. It is also not disputed that in these cases, enquiry under Section 16 of the Act can be said to be pending. ( 4 ) SECTION 22 (1) of the Act on which the learned Counsel for the petitioners rely reads as follows:"22. Suspension of Legal Proceedings. Contracts, etc.- (1) Where in respect of an industrial company, an inquiry under section 16 is pending or any scheme referred to under Section 17 is under preparation or consideration or a sanctioned scheme is under implementation or where an appeal under Section 25 relating to an industrial company is pending, then, notwithstanding anything contained in the Companies Act, 1956 or any other law or the memorandum and articles of association of the industrial company or any other instrument having effect under the said Act or other law, no proceedings for the winding up of the industrial company or for execution, distress or the like against any of the properties of the industrial company or for the appointment of a Receiver in respect thereof and no suit for the recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans, or advance granted to the industrial company shall lie or be proceeded with further, except with the consent of the Board or, as the case may be, the Appellate Authority. " ( 5 ) IN view of the authoritative pronouncement of a Division Bench of this court in the case of Raghunath Cotton and Oil products Limited vs. Rama Rao Cotton company and of Supreme Court in the case of M/s. BSI Ltd. and another vs. Gift Holdings pvt. Limited, the controversy as to whether the expression proceedings in subsection (1) of Section 22 of the Act encompasses criminal prosecutions against the company concerned must be held to have been laid to rest. The Supreme Court in the said judgment has categorically held that the words "suit" mentioned in Section 22 (1) of the Act does not include criminal prosecution. The observations of the supreme Court in paras 19 and 20 poinedoutly indicate this conclusion that the word suit envisaged in Section 22 (1) of the act cannot be stretched to criminal prosecutions. The Supreme Court in the said judgment has categorically held that the words "suit" mentioned in Section 22 (1) of the Act does not include criminal prosecution. The observations of the supreme Court in paras 19 and 20 poinedoutly indicate this conclusion that the word suit envisaged in Section 22 (1) of the act cannot be stretched to criminal prosecutions. The suit mentioned therein is restricted to proceedings for recovery of money or for enforcement of any security against the industrial company or any guarantee in respect of any loans or advances granted to the industrial company. It has thus been held that as the suit is clearly delineated in the provision itself, the context would not admit of any other stretching process. ( 6 ) AGAIN in para 20 of the Act, it has been held that a criminal prosecution is neither for recovery of money nor for enforcement of any security etc. Section 138 of the negotiable Instruments Act (for short ni act ) is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in a duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecutionproceedingscanbeinitiatednot for recovery of the amount covered by the cheque but for bringing the offender to the penal liability. What was considered in maharashtra Tubes Ltd. vs. State Industrial and investment Corporation of Maharashtra Ltd. and another3 is whether the remedy provided in Section 29 or 31 of the State Finance corporation Act, 1951 could be pursued notwithstanding the ban contained in section 22 of the SICA. Hence the legal principle adumbrated in the said decision is of no avail to the appellants ( 7 ) UNDERLINING the intention of the legislature in this regard, the Supreme court further observed in para 21 that in the above context it is pertinent to point out that section 138 of the NI Act was introduced in 1988 when SICA was already in vogue. Even when the amplitude of the word company mentioned in Section 141 of the NI Act was widened through the explanation added to the Section, Parliament did not think it necessary to exclude companies falling under Section 22 of SICA from the operation thereof. If Parliament intended to exempt sick companies from prosecution proceedings, necessary provision would have been included in Section 141 of the NI act. If Parliament intended to exempt sick companies from prosecution proceedings, necessary provision would have been included in Section 141 of the NI act. More significantly, when Section 22 (1) of SICA was amended in 1994 by inserting the words and not suit for the recovery of money or for enforcement of any security against industrial company or of any guarantee in respect of any loans or advance granted to industrial company , Parliament did not specifically include prosecution proceedings within the ambit of the saidban. ( 8 ) A Division Bench of this Court presided over by His Lordship umeshchandra Banerjee, CJ. (as he then was) in the case of Raghunath Cotton and Oil products Limited (1 supra) has held on the same lines as seen from the observations in para 7 of the judgment above cited, which reads as follows:"criminal liability in terms of Sec. 138 is an absolute liability and, thus, stands irrespective of the provisions of section 22 (1) of the SICK Industries Act, the Sick Industries Act also applies to the recovery of debts by way of a suit or proceeding for winding up or enforcement of security for the industrial company. It is a special enactment brought into existence to meet the specific contingencies therein and this cannot be applied in the absence of a specific provision to negate the effect of another legislative provision, to wit, section 138 of the Negotiable instruments Act, specially in the absence of extending the ambit of the provision of Section 22 (1) to the criminal element involved by reason of the other statute. A plain reading of Section 22 of the sick Industries Act reveals the true intent of Legislature to keep in abeyance the civil liability or debt of an industrial company. Sub-section (3) of Section 22 of the Sick Industries Act also lends support to the observation as above. " ( 9 ) THE Division Bench also quoted approvingly a passage from the judgment of this Court in the case of B. Mohan Krishna vs. Union of India wherein while discussing the provisions of Section 22 of the Act, it has been observed as follows:"its sphere of operation is confined to proceedings for the winding up of an industrial company. It does not in any way bar prosecution of a company or any of its employees under the provisions of the Negotiable instruments Act or any other penal law". ( 10 ) THE learned Counsel for the petitioners however rely on the observations in the concluding par a of the judgment of the supreme Court in the case of M/s. BSI Limited and another (2 supra) which are extracted below:"the conclusion which we have to draw is that if commission of the offence under section 138 of the NI Act was completed before the commencement of proceedings under Section 22 (1) of SICA there is no hurdle in any of the provisions of SICA against the maintainability and prosecution of a criminal complaint duly instituted under Section 142 of the NI Act". ( 11 ) ON the basis of these observations, an argument is sought to be developed that what the Supreme Court has held was that the provisions in Section 22 (1) of the Act are not attracted where the offence under section 138 of the Negotiable Instruments act was completed before the commencement of the proceedings under section 22 (1) of the Act and it therefore follows, according to the learned Counsel, that if in any case a reference under Sec. 15 of the Act has been made to the BIFR and enquiry under Section 16 is pending before completion of the offence under Section 138 of the NI Act, namely, before the expiry of the period of notice of 15 days required to be given to the accused calling upon him to pay the amount due under the cheque, then embargo under Section 22 (1) of the Act applies. This argument proceeds on the basis that because the Supreme Court held in that case that inasmuch as the offence was completed in respect of Section 138 of the negotiable Instruments Act before commencement of proceedings under section 15 of the Act, the bar under Section 22 of the Act does not apply. The argument is further extended to contend that the said bar under Section 22 of the Act would apply where the offence was not completed by the time reference under Section 15 of the Act was made to the Board. This contention is logically untenable. The argument is further extended to contend that the said bar under Section 22 of the Act would apply where the offence was not completed by the time reference under Section 15 of the Act was made to the Board. This contention is logically untenable. ( 12 ) THE concluding para of the Supreme court relied upon by learned Counsel for the petitioners, Sri B. Nalinikumar, only shows that the fact that offence under Section 138 of ni Act was completed before the commencement of the proceedings under section 15 (1) of the Act was incorporated as an additional ground rooted in the facts of the case to hold that Section 22 of the Act does not interdict the prosecution under section 138 of the NI Act on the ground of pendency of proceedings under section 15 (1) of the Act. This does not detract from explicit enunciation of law based on the interpretation of the provisions under section 22 (1) of the Act that prosecution for an offence under Section 138 of the Act is not one of the proceedings covered by section 22 (1) of the Act as held in the previous paras of the judgment already quoted above. ( 13 ) IF there is any doubt in this regard, the subsequent judgment of the Supreme Court in the case of M/s. Kusum Ingots and Alloys limited vs. M/s. Pennar Peterson Securities limited must be sufficient to clear it. In this judgment, the Supreme Court held unequivocally that Section 22 (1) of the Act does not bar the filing or continuation of prosecution for the offence under Section 138 of the N. I. Act, as can be seen from the observations in para 17 of the judgment which are extracted below:"in our considered view Section 22 SICA does not create any legal impediment for instituting and proceeding with a criminal case on the allegations of an offence under Section 18 of the NI Act against a company or its Directors. The section as we read it only creates an embargo against disposal of assets of the company for recovery of its debts. The purpose of such an embargo is to preserve the assets of the company from being attached or sold for realization of dues of the creditors. The section as we read it only creates an embargo against disposal of assets of the company for recovery of its debts. The purpose of such an embargo is to preserve the assets of the company from being attached or sold for realization of dues of the creditors. The section does not bar payment of money by the company or its Directors to other persons for satisfaction of their legally enforceable dues". ( 14 ) IN view of the authoritative pronouncement of the Supreme Court, there is no scope for contending that the provisions under Section 22 (1) of the Act operate as a bar to the prosecution for the offence under Section 138 of the NI Act and they could not be a ground for quashing the proceedings. ( 15 ) THE learned Counsel Sri b. Nalinikumar appearing in Crl. P. Nos. 464, 465,467,516,517,518,519,557,559,593,594, 595, 631, 632 to 635 of 2000 and batch raises another contention in respect of the plea for quashing the proceedings that in these cases, the complainant sought to proceed against its Managing Director and other Directors. The plea in respect of accused other than the company and the Managing Director is that there is nothing in the averments in the complaint to show that they are liable by virtue of provisions under Section 141 of the ni Act. Section 141 of the NI Act contemplates that if a person who commits an offence under Section 138 of the NI Act is a company, every person who, at the time the offence was committed, was in-charge of and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of offence and shall be liable to be proceeded against. Sub-section (2) of section 141 of the NI Act further provides that where any offence under the Act has been committed by a Company and it is proved that the offence has been committed with the consent or connivance of or is attributable to, any neglect on the part of, any Director, Manager, Secretary or other officer, he shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. ( 16 ) THE contention is that the allegations in the complaint do not satisfy the requirement of Section 141 of the Act in respect of petitioners in each of the case other than the company and the Managing director. ( 17 ) IN para 4 of the complaint impugned in Crl. P. No. 464 of 2000, the following assertions are made: "the accused No. 1 is firm and the accused No. 2 is the Vice-Chairman- cum-MD and the accused No. 3 is the director of A-1 firm and the accused no. 4 is the Director of A-1 firm and the accused No. 5 is the Chairman of A-1 firm as such A-2 to A-5 are also responsible for the conduct of the business of A-1 firm. Hence, A-2 to A-5 are also liable to be prosecuted". ( 18 ) LIKEWISE, similar assertions have been made in other complaints also. ( 19 ) THE contention of the learned Counsel for the petitioners Sri B. Nalinikumar is that there is no specific allegations that these accused are in-charge of and are responsible to the affairs of the company. The exact