JUDGMENT : B.P. Ray, J. - The petitioner which is a Company incorporated under the Companies Act, 1956 has challenged the order dated 29.03.2003 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No. 154 of 2002 and has sought for quashing of the same holding that the Criminal complaint as per the grounds on the basis of the facts of the case is not maintainable against the accused persons and also has prayed for dismissal of the said petition. 2. The petitioner-company had a long standing transactional agreement with the opp.party No.1. The above mentioned complaint was filed u/s. 138, N.I. Act by the opp.party No.1 because of non-payment of 9 (nine) numbers of cheque by the Banker due to "insufficiency of funds". The learned S.D.J.M. after taking cognizance issued summons to the accused persons for their appearance. 3. The petitioner filed an application before the learned S.D.J.M. for recall of the order of cognizance as the petitioner-Company was declared sick by the Board for Industrial and Financial Reconstruction (in short, "BIFR") Court and the restrictions were imposed under Sections 22 & 22(a) of the Sick Industrial Company (Special Provisions) Act, 1985. The petitioner's application was on the basis of ratio of a decision of the apex Court reported in Kusum Ingots and Alloys Ltd., etc. Vs. Pennar Peterson Securities Ltd. and Others, The relevant portion of the judgment at paragraph 18 which is relied upon by the petitioner is as follows :- In a case in which the BIFR has submitted its report declaring a Company as 'sick' and has also issued a direction u/s. 22-A restraining the Company or its Directors not to dispose of any of its assets except with consent of the Board then the contention raised on behalf of the appellants that a criminal case for the alleged offence u/s. 138 of N.I. Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright. Whether the contention can be accepted or not will depend on the facts and circumstances of the case. Whether the contention can be accepted or not will depend on the facts and circumstances of the case. Take for instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BIFR u/s. 22-A was passed against the Company the it can not be said that the offence U/s. 138 of N.I. Act was completed. In such a case it may reasonably be said that the dishonoring of the cheque by the Bank and failure to make payment of the amount by the company and/or its Directors is for reasons beyond the control of the accused. It may also be contended that the amount claimed by the complainant is not recoverable from the assets of the Company in view of the ban order passed by the BIFR. In such circumstances it would be unjust and unfair and against the intent and purpose of the statute to hold that the Directors should be compelled to face trial in a criminal case. 4. However, learned S.D.J.M., vide its order dated 29.3.2003 rejected the application of the petitioner on the ground that in order to take benefit of the judgment the trial is necessary. The above factual aspects have not been disputed by the O.P. No.1. During the pendency of this matter, the petitioner claimed that the total amount of the value of the cheques amounting to Rs. 3,89,83,933/- has been paid in different installments after repeated protected negotiations and conciliations. This fact is admitted in the counter affidavit filed on 10.3.2008 by the O.P. No.1. After receiving the above amount the opp.party No.1. claimed interest without quantification of the same. 5. From several counter affidavits filed by the opp.party No.1 and as per stand of the petitioner it is admitted there was a long standing transaction between the petitioner and opp.party No.1. The business relationship admittedly continues. During pendency of the case repeated conciliation meetings have taken place and it is admitted the total value of the cheques has been paid. The petitioner has further relied upon the case of P. Suresh Kumar v. R. Shankar, reported in 2007 (I) OLR (SC) 602. In the facts of the cited case accused admitted his liability to the extend of Rs. 7,00,000/- which was the value of the cheque. The petitioner has further relied upon the case of P. Suresh Kumar v. R. Shankar, reported in 2007 (I) OLR (SC) 602. In the facts of the cited case accused admitted his liability to the extend of Rs. 7,00,000/- which was the value of the cheque. But the complainant claimed Rs.12 lakhs which was inclusive of damages and costs. In that case the Supreme Court held that no case was made out for award of substantial sentence and grant of compensation of Rs. 7 lakhs which is the value of the cheque is sufficient and for damages and other reliefs suit may be filed. 6. In the present case the petitioner has admitted its liability to the extent of value of cheques and has paid the same. The opp.party No.1 has accepted the same without raising any objection. The petitioner along with an affidavit has enclosed the communication dated 11.01.2008 wherein the opp.party No.1 communicated as follows : We would request to clear the undisputed amount of Rs. 9.12 lacs immediately. In respect of outstanding on account of unsettled discrepancies, kindly provide us necessary documentary evidence in respect of your claim for Rs. 34.83 lacs, which has not been settled for long. Finally, the interest amount has been computed based on, the then PLR rate up to March-06. Please note that the disputed amount payable also will carry on interest at the rate of the then PLR. We look forward for your prompt confirmation on the above outstanding and its schedule for liquidation so that the same can be settled amicably without further delay. From the above it is clear besides the undisputed amount of Rs. 9.12 lacs the rest of the amount was disputed and the same was agreed to be settled amicably. The petitioner paid the said Rs. 9.12 lacs on 14.01.2008. In that view of the matter, the total undisputed amount has been paid. 7. In view of the observation of the Supreme Court in the case reported in Kusum Ingots and Alloys Ltd., etc. Vs. Pennar Peterson Securities Ltd. and Others because of the restraint order of the BIFR U/s, 22(a) of SICA, it cannot be said offence U/s. 138 of N.I. Act was committed. 7. In view of the observation of the Supreme Court in the case reported in Kusum Ingots and Alloys Ltd., etc. Vs. Pennar Peterson Securities Ltd. and Others because of the restraint order of the BIFR U/s, 22(a) of SICA, it cannot be said offence U/s. 138 of N.I. Act was committed. In the present case admittedly there was an order u/s. 22(a) of the SICA against the company and its Directors and therefore, it was beyond the control of company and its Directors to deal with assets of the Company to clear the liability against the cheques. It has been held that it would be unjust and unfair and against the interest and purpose of the statute to hold that the Directors should be compelled to face trial in a criminal case. 8. In view of the above facts of the settlement arrived at between the parties during protected negotiations and that it was beyond the control of the company and Directors to make the payment in view of the order U/s. 22(a) of SICA and further in view of the admitted fact that the value of the cheques and the undisputed amount of Rs. 9.12 lacs having been paid by the petitioner, the accused persons cannot be held liable u/s. 138 of N.I. Act. The factual and repeated submissions on behalf of opp.party No.1 compel the petitioner to pay the interest or other wise put them to the trial are both not tenable and acceptable in view of the ratio of the decided cases referred to above. 9. Accordingly, the order dated 29.3.2003 passed by the learned S.D.J.M., Bhubaneswar in I.C.C. No. 154 of 2002 and the proceeding in the said case are quashed and the complaint case is dismissed. However, it is open to the opp.party No.1 to adopt such recourse available in law for realization of damages and/or interest, if so advised. CRLMC is accordingly allowed. Final Result : Allowed