M. S. A. SIDDIQUI, J. ( 1 ) THIS batch of petitions under Section 482 Cr. P. C. raises the following questionfor determination; ( 2 ) WHETHER a company can be proceeded against for having committed an offenceunder Section 138 of the Negotiable Instruments Act (for short the act ) after thecompany has been declared sick under the provisions of the Sick Industrial Companies (Special Provisions Act) 1985 before the expiry of the period of payment of thecheque amount? Since a common question of law is involved in the Petitions beforme, they are being disposed of by this common order. ( 3 ) THE factual position about which there is no dispute may be stated thus: M/spaam Pharmaceutical (Delhi) Limited is a Public Limited company. Five complainteunder Section 138 of the Act were filed against the petitioner company before themetropolitan Magistrate New Delhi. The complaints contained the allegations thatcheques were issued on behalf of the petitioner company in favour of the respondentwhen these cheques were presented for payment they were dishonored by thedrawee bank on the ground of insufficiency of funds in the account. Then respondentissued notices to the petitioner company demanding payment of the amounts coveredby the cheques. Since no payment was made within the period stipulated under thact, the respondents filed complaints against the Company and its Directors for thoffence punishable under Section 138 of the Act in respect of each cheque. Thmagistrate took cognizance of the offence on each of the complaints and issueprocess against the accused. Aggrieved thereby the petitioners have filed the presentpetitions under section 482 Cr. F. C. seeking quashment of the complaints fileagainst them. ( 4 ) THE petitioners seek quashing of the complaints filed under Section 138 of thact on the ground that since the offending company has been declared sick by thbifr, no steps could be taken by the respondents (complainants) for realisation bethe amounts said to be due to them and so the complaints filed by them are liable tobe quashed. Reliance has been placed on Sections 22 of the Sick Industrialcompanies (Special Provisions Act) 1985 (for short sica ). According to thepetitioner, on 31/03/1999, the BIFR had submitted its report declaring thepetitioner company as sick and has also issued a direction under Section 22-A of thesica restraining the Company or its Directors not to dispose of any of its asseeexcept with consent of the board. According to thepetitioner, on 31/03/1999, the BIFR had submitted its report declaring thepetitioner company as sick and has also issued a direction under Section 22-A of thesica restraining the Company or its Directors not to dispose of any of its asseeexcept with consent of the board. The offending cheques were issued in 1997. Thequestion is whether Section 22 or 22-A of SICA affects a criminal case for an offenceunder Section 138 of the Act. A similar question was more recently considered by theapex Court in Kl and Alloys Ltd. Vs. P. P. Securities Ltd. , 84 (2000) DLT 229 (SCAnalysing the scope and ambit of the provisions of Sections 22 and 22-A of SICAtheir Lordships have held that Section 22-SICA does not create any legal impedimerfor instituting and proceeding with the criminal case on the allegations of an offenceunder Section 138 of the Act against a company or its Director. Reference in thiscontext, may usefully by made to the following passages of the Judgment. ( 17 ) "in our considered view Section 22, SICA does not create any legalimpediment for instituting and proceeding with a criminal case on theallegations of an offence under Section 138 of the Nl Act against a companyor its Directors. The section as we read it only creates an embargo againstdisposal of assets of the Company for recovery of its debts. The purpose ofsuch an embargo is to preserve the assets of the company from beingattached or sold for realisation of dues of the creditors. The section does notbar payment of money by the company or its Directors to other persons forsatisfaction of their legally enforceable dues". ( 18 ) "the question that remains to be considered is whether Section 22a ofsica affects a criminal case for an offfence under Section 138, Nl Act. In thesaid section provision is made enabling the Board to make an order in writingto direct the Sick Industrial Company not to dispose of, except with theconsent of the Board, any of its assets - (a) during the period of preparationor consideration of the scheme under Section 18; and (b) during the periodbeginning with the recording of opinion by the Board for winding up of thecompany under Sub-section (1) of Section 20 and up to commencement ofthe proceedings relating to the winding up before the concerned High Court. This exercise of the power by the Board is conditioned by the prescriptionthat the Board is of the opinion that such a direction is necessary in theinterest of the Sick Industrial Company or its creditors or shareholders or inthe public interest. In a case in which the BIFR has submitted its reportdeclaring a company as sick and has also issued a direction under Section22a restraining the Company or its Directors not to dispose of any of itsassets except with consent of the Board then the contention raised on behalfof the appellants that a criminal under Section 138, Nl Act cannot beinstituted during the period in which the restraint order passed by the BIFRremains operative cannot be rejected outright. Whether the contention canbe accepted or not will depend on th enacts and circumstances of the case. Take for instance, before the date on which the cheque was drawn or beforeexpiry of the statutory period of 15 days after notice a restraint order of thebifr under Section 22a was passed against the company then it cannot besaid that the offence under Section 138, Nl Act was completed. In such a caseit may reasonably be said that the dishonoring of the cheque by the Bank andfailure to make payment of the amount by the Company and/or its Directors isfor reasons beyond the control of the accused. It may also be contended thatthe amount claimed by the complainant is not recoverable from the assets ofthe company in view of the ban order passed by the BIFR. In suchcircumstances it would be unjust and unfair and against the intent andpurpose of the statute to hold that the Directors should be compelled to facetrial in a criminal case. " ( 5 ) IN M/s. BSI. Ltd. and Anr. Vs. Giff Holdings Pvt. Ltd. and Anr. In suchcircumstances it would be unjust and unfair and against the intent andpurpose of the statute to hold that the Directors should be compelled to facetrial in a criminal case. " ( 5 ) IN M/s. BSI. Ltd. and Anr. Vs. Giff Holdings Pvt. Ltd. and Anr. , JT 2000 (2)127, it was held that "if commission of the offence under Section 138 of the Actcompleted before the commencement of proceeding under Section 22 (1) of Sthere is no hurdle in any of the provisions of SICA against the maintainabilityprosecution of a criminal complaint duly instituted under Section 142 of the Nl Act ( 6 ) BEARING in mind the said principles of law enunciated by their lordships ofsupreme Court I am of the opinion that the criminal proceedings instituted usesection 138 of the Act cannot be quashed, at the threshold on the sole ground theoffending company has been declared sick under Section 22 of SICA. Consequei am not inclined to interfere in the matter in exercise of powers under Sectioncr. P. C. However, it would be open to the petitioners to place relevant material:this regard before the trial court which will examine the matter at the appropstage of a particular case in the light of the observations made by their Lordshipthe Supreme Court in M/s K. I. and Alloys Ltd. and BS/. Ltd. and Anr. , (supra) andevidence on record. The petitions are disposed of accordingly.