Heard. Rule. By consent rule made returnable forthwith. Respondents waive service.

1] This criminal writ petition has been placed before me as it seeks to question the order passed by the learned Metropolitan Magistrate, 12th Court in C.C.No.585/SS/08.

2] By the order dated 21st January 2011, a copy of which is at page 69 of the paper-book, the learned Metropolitan Magistrate has allowed the application filed by the accused Nos. 1 to 3 and discharged them of the offences punishable under section 138 read with 141 of the Negotiable Instruments Act, 1881.

3] Mr.Mundargi, learned Counsel appearing for the original complainant – petitioner before me submitted that the trial court has misconstrued and misapplied the ratio of the judgment of the Supreme Court in the case of Kusum Ingots Vs. Pennar Peterson Securities Ltd. & Ors. reported in (2000) 2 S.C.C. 745. He submits that the learned Single Judge of this Court in the case of M/s.Aefloat Textiles (India) Ltd. & Anr. Vs. M/s.Boghara Polyfab Pvt. Ltd. reported in 2008 Cr.L.J. 1494 has held that mere passing of an order by Board for Industrial and Financial Reconstruction (BIFR) under section 22 of the Sick Industries (Special Provisions) Act, 1985 (for short SICA) cannot be a reason to quash the proceedings in criminal case filed under section 138 of the Negotiable Instruments Act, 1881 (for short NI Act). He submits that the learned Trial Judge has in the judgment delivered and impugned in this petition held that the cheques were admittedly presented after 19th December 2007 i.e. the date of the order passed by the BIFR. That order was effective for a period of eight weeks. The demand has been issued on 21st January 2008 which was received by accused Nos. 1 and 3 on 24th January 2008. The statutory period expired on 8th February 2008. The finding that the offences can be said to be committed only after 9th February 2008 is, therefore, erroneous, according to Mr.Mundargi. He submits that the reference to BIFR proceedings and the orders of BIFR cannot be a reason to straight away discharge the accused from the criminal case. He submits that the trial court has failed to note that the accused are the company and two directors. In these circumstances discharging them from the criminal case has caused serious prejudice to the petitioner – original complainant. The order has resulted in miscarriage of justice and, therefore, should be set aside. The material at the prima facie stage was enough to frame charges and to proceed against the accused. This is not a case where the complaint does not disclose commission of any offence or the materials produced by the complainant would show that no offence is committed at all.

4] On the other hand, Mrs.Ingale, learned Counsel appearing for accused supported this impugned order by urging that the judgment of the Supreme Court in the case of Kusum Ingots and M/s.Aefloat has been followed in a later decision of that very court and hence, it is good law. In this case, the trial Judge's attention was invited to the order of the BIFR dated 25th September 2007. That order of the BIFR very categorically records that the company shall not dispose off, lease out, encumber or alienate in any way its fixed or current assets without specific prior approval of BIFR. However, if the unit is working , the current assets could be utilised for running day to day operations, subject to keeping proper records thereof and routing all transactions through the account with the company's financing bank/s only. She submits that these are guidelines for preparation of the rehabilitation scheme and they are annexures to the order of the BIFR. In these circumstances, she submits that the learned trial Judge was in no error in discharging the accused from the case. The order in that behalf does not suffer from any illegality or perversity warranting interference in writ jurisdiction. The petition be, therefore, dismissed.

5] With the assistance of the learned