A. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (d) – Constitution of India, Article 141 -- Plaint to be barred by any law -- Rejection of plaint -- Expression “law” occurring in Order 7 Rule 11 (d) includes judicial decisions of the Hon’ble Apex Court -- The authoritative pronouncement of the Hon’ble Apex Court is the law of land -- The law declared by Hon’ble Apex Court under Article 141 of the Constitution of India is law of land -- Law includes not only legislative enactments but also judicial precedents.

(Para 6)

B. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Article 17(iii), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- If a non-executant who is in possession of the property seeks to get the document annulled, then he is required to pay Court as per Article 17(iii) of the Second Schedule of the Act.

(Para 9)

C. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed not in possession – Challenge to Transfer deed – Ad-valorem court fee – If the non-executant who is not in possession of the property and he seeks not only the declaration of the instrument to be invalid, but also seeks possession thereof, then he is required to pay ad valorem Court fee as per market value under Section 7(iv) (c) of the Act.

(Para 9)

D. Code of Civil Procedure, 1908, (V of 1908), Order 7 Rule 11 (c) – Court Fees Act, 1870 (7 of 1870), Section 7 (iv)(c) -- Non-executant of deed in possession – Challenge to Transfer deed – Ad-valorem court fee -- Suit for declaration to the effect that he is owner in possession of the suit property -- Transfer deed was claimed to be sham transaction and was not binding upon the right and title of the plaintiff -- Permanent injunction was also sought, restraining the defendant from dispossessing the plaintiff – Transfer deed under challenge in the suit does not show any consideration -- Plaintiff is not required to pay ad valorem Court fee.

(Para 2, 10)

A. Constitution of India, Article 14 -- Rule of natural justice -- Basic fundamental principle of law that no order can be passed by any Court in any judicial proceedings against any party to such proceedings without hearing and giving such party an opportunity of hearing.

(Para 8)

B. Constitution of India, Article 14 -- Rule of natural justice -- A person is made a party to the judicial proceedings in relation to a certain dispute has a legitimate right to raise an objection that before passing any order in such proceedings, he should be at least heard and his views/stand in relation to the subject matter of the proceedings be taken into consideration -- The Court is duty bound to hear all such person(s) by giving them an opportunity to place their stand.

(Para 10)

View of Dipak Misra and A.M. Khanwilkar, JJ.

A. Indian Penal Code, 1860 (45 of 1860), Section 497 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198 – Constitution of India, Article 14, 21, 32 – Adultery – Aggrieved party – Procedure of -- Constitutional validity of – Section 497 IPC effectively creating a dent in individual dignity of women -- Emphasis on element of connivance or consent of husband tantamounts to subordination of women which violates Article 21 of Constitution – If it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere -- It is better to be left as a ground for divorce -- As a criminal offence it will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two – Held, Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional -- When the substantive provision goes, the procedural provision has to pave the same path.

(Para 41-56)

View of R.F. Nariman, J.

B. Indian Penal Code, 1860 (45 of 1860), Section 497 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198 – Constitution of India, Article 14, 15, 21 – Adultery – Aggrieved party – Procedure of -- Constitutional validity of – In treating a woman as chattel for the purposes of this provision, such provision discriminates against women on grounds of sex only, and must be struck down -- Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence -- Held, Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid.

(Para 81-86)

View of Dr. Dhananjaya Y. Chandrachud, J.

C. Indian Penal Code, 1860 (45 of 1860), Section 497 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198 – Constitution of India, Article 14, 15, 21 – Adultery -- Constitutional Validity – Criminal law must be in consonance with constitutional morality -- Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster – Held, Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary -- Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society -- Section 497 violates Article 14 of the Constitution -- Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution -- Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and Section 497 is unconstitutional.

 (Para 153)

View of Indu Malhotra, J.

D. Indian Penal Code, 1860 (45 of 1860), Section 497 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198 – Constitution of India, Article 14, 15, 21 – Adultery as offence -- Right to equality – Procedure to prosecute -- Constitutional validity – Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution -- Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(Para 165-171)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Code of Civil Procedure, 1908 (V of 1908) -- Constitution of India, Article 227 -- Civil and Criminal proceedings – Stay of – Automatic vacation of stay -- Proceedings remaining pending for long on account of stay needs to be remedied -- Remedy is required not only for corruption cases but for all civil and criminal cases where on account of stay, civil and criminal proceedings are held up -- At times, proceedings are adjourned sine die on account of stay -- Even after stay is vacated, intimation is not received and proceedings are not taken up -- In an attempt to remedy this, situation, Directions given that :

-- in all pending cases where stay against proceedings of a civil or criminal trial is operating, the same will come to an end on expiry of six months from today unless in an exceptional case by a speaking order such stay is extended.

-- In cases where stay is granted in future, the same will end on expiry of six months from the date of such order unless similar extension is granted by a speaking order.

-- The speaking order must show that the case was of such exceptional nature that continuing the stay was more important than having the trial finalized.

-- The trial Court where order of stay of civil or criminal proceedings is produced, may fix a date not beyond six months of the order of stay so that on expiry of period of stay, proceedings can commence unless order of extension of stay is produced.

(Para 35)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 397, 482 – Constitution of India, Article 227 – Framing of charge – Challenge to – Power of -- Stay of proceedings -- Framing charge is not purely an interlocutory order nor a final order -- Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution -- However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered -- Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to re-appreciate the matter.

-- Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period.

-- Though no mandatory time limit may be fixed, the decision may not exceed two-three months normally.

-- If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated.

-- In all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from today unless extended by a speaking order on above parameters.

-- Same course may also be adopted by civil and criminal appellate/revisional courts under the jurisdiction of the High Courts.

-- Trial courts may, on expiry of above period, resume the proceedings without waiting for any other intimation unless express order extending stay is produced -- High Courts may also issue instructions to this effect and monitor the same so that civil or criminal proceedings do not remain pending for unduly period at the trial stage.

A copy of order sent to all the High Courts for necessary action.

(Para 37, 38)

A. Constitution of India, Article 14 – Equal pay for equal work – Law summarised -- Full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), dated 11.11.2011 and decision rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009) are set aside -- Decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them.

(Para 52)

B. Constitution of India, Article 14, 141 – Equal pay for equal work for work-charge, daily-wage, casual, ad-hoc, contractual etc. – Law summarised -- Principle of ‘equal pay for equal work’ has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like) -- An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities -- Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position -- In view of the law declared by Supreme Court under Article 141 of the Constitution of India, the principle of ‘equal pay for equal work’ constitutes a clear and unambiguous right and is vested in every employee, whether engaged on regular or temporary basis -- Sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts.

(Para 54-57)

C. Constitution of India, Article 14, 141 – Equal pay for equal work – Temporary employees -- All the temporary employees were appointed against posts which were also available in the regular cadre/establishment -- Concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees -- Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time – It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis -- Principle of ‘equal pay for equal work’ would be applicable and all the concerned temporary employees would be entitled to draw wages at the minimum of the pay-scale (at the lowest grade, in the regular pay-scale), extended to regular employees, holding the same post.

 (Para 57, 58)

A. Constitution of India, Article 21 – Right to life -- Access to justice -- Access to justice is and has been recognised as a part and parcel of right to life in India and in all civilized societies around the globe -- The right is so basic and inalienable that no system of governance can possibly ignore its significance, leave alone afford to deny the same to its citizens -- Supreme Court has by a long line of decisions given an expansive meaning and interpretation to the word ‘life’ appearing in Article 21 of the Constitution.

(i)    In Maneka Gandhi v. Union of India (1978) 1 SCC 248, Court declared that the right to life does not mean mere animal existence alone but includes every aspect that makes life meaningful and liveable.

(ii)   In Sunil Batra v. Delhi Administration (1978) 4 SCC 494 the right against solitary confinement and prison torture and custodial death was declared to be a part of right to life.

(iii)  In Charles Sobhraj v. Suptd. Central Jail (1978) 4 SCC 104 the right against bar fetters was declared to be a right protected under Article 21 of the Constitution.

(iv)   In Khatri II v. State of Bihar (1981) 1 SCC 627, the right to free legal aid was held to be a right covered under Article 21 of the Constitution.

(v)    In Prem Shankar Shukla v. Delhi Administration (1980) 3 SCC 526 the right against handcuffing was declared to be a right under Article 21.

(vi)   So also in Rudal Shah v. State of Bihar (1983) 4 SCC 141 the right to compensation for illegal and unlawful detention was considered to be a right to life under Article 21 and also under Article 14.

(vii)  In Sheela Barse v. Union of India (1988) 4 SCC 226, Court declared speedy trial to be an essential right under Article 21.

(viii) In Parmanand Katara v. Union of India (1989) 4 SCC 248, right to emergency, medical aid was declared to be protected under Article 21 of the Constitution.

(ix)   In Chameli Singh v. State of U.P. (1996) 2 SCC 549 and Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520, right to shelter, clothing, decent environment and a decent accommodation was also held to be a part of life.

(x)    In M.C. Mehta v. Union of India (1997) 1 SCC 388, right to clean environment was held to be a right to life under Article 21.

(xi)   In Lata Singh v. State of U.P. (2006) 5 SCC 475, right to marriage was held to be a part of right to life under Article 21 of the Constitution.

(xii)  In Suchita Srivastava v. Chandigarh Administration (2009) 9 SCC 1, right to make reproductive choices was declared as right to life.

(xiii) While in Sukhwant Singh v. State of Punjab (2009) 7 SCC 559 right to reputation was declared to be a facet of right to life guaranteed under Article 21.

(xiv) In the recent Constitution Bench Judgment decision of this Court in Subramanian Swamy v. Union of India [W.P (Crl.) No.184 of 2014], Court held reputation to be an inherent and inseparable component of Article 21.

Held, access to justice is indeed a facet of right to life guaranteed under Article 21 of the Constitution -- Article 21 of the Constitution apart, access to justice can be said to be part of the guarantee contained in Article 14 as well.

(Para 27,28)

B. Constitution of India, Article 21 – Access to justice -- Four main facets that constitute the essence of access to justice are:

i)     The State must provide an effective adjudicatory mechanism;

ii)    The mechanism so provided must be reasonably accessible in terms of distance;

iii)   The process of adjudication must be speedy; and

iv)   The litigant’s access to the adjudicatory process must be affordable.

(Para 29, 30)

C. Constitution of India, Article 21, 32, 136, 142 -- Access to justice – Right to life – Transfer of case from Jammu and Kashmir to other State -- Access to justice is a facet of the right to life guaranteed under Article 21 of the Constitution, a violation actual or threatened of that right would justify the invocation of this Court’s powers under Article 32 of the Constitution – There is no prohibition against use of power under Article 142 to direct transfer of cases from a Court in the State of Jammu and Kashmir to a Court outside the State or vice versa -- There is no enabling provision, the absence of an enabling provision, however, cannot be construed as a prohibition against transfer of cases to or from the State of Jammu and Kashmir – Extraordinary power available to this Court under Article 142 of the Constitution can, therefore, be usefully invoked in a situation where the Court is satisfied that denial of an order of transfer from or to the Court in the State of Jammu and Kashmir will deny the citizen his/her right of access to justice.

 (Para 36)

A. Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 41, 41-A – Arrest of Advocate/ Doctor – Procedure of law violated – Life and liberty of accused -- Compensation to accused arrested -- Arrest of the petitioners was not made by following the procedure of arrest -- Dignity of the petitioners, a doctor and a practicing Advocate has been seriously jeopardized -- It is an assault on his/her identity – Said identity is sacrosanct under the Constitution – Article 21 has been violated and the petitioners were compelled to face humiliation – Not only there are violation of guidelines issued in the case of D.K. Basu (1997) 1 SCC 416, there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of Cr.PC -- A sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation is awarded to each of the petitioners to be paid by the State of M.P. within three months hence -- It will be open to the State to proceed against the erring officials, if so advised.

(Para 22-27)

B. Indian Penal Code, 1860 (45 of 1860), 420 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Cheating – Civil Dispute -- On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour – No ingredient of Section 420 IPC is remotely attracted -- Even if it is a wrong, the complainant has to take recourse to civil action – Not the case where cognizance of the offence can be taken by the court and the accused can be asked to face trial -- Entire case projects a civil dispute and nothing else – Prosecution initiated against the petitioners stands quashed.

(Para 28, 29)

A. Convict – Under-trial prisoner -- There is a difference between a ‘convict' and 'under-trial prisoner' -- A convict suffers his sentence after conviction when his guilt is proved, whereas an under-trial prisoner remains in jail and is presumed to be innocent till he is found guilty by the Court.

(Para 24)

B. Constitution of India, Article 21, 226 -- Undertrial-prisoner’s right to marry – Right to marry is a necessary concomitant of right to life guaranteed under Article 21 of the Constitution of India and if not a fundamental right, it is akin to it and so on and so forth -- An undertrial prisoner, being presumed to be innocent, has a right to marry with someone who is not an under-trial like him/her and/or a person can marry an under-trial prisoner, if he/she desires.

(Para 26-28)

C. Constitution of India, Article 21, 226 -- Undertrial-prisoner’s right to marry – Venue of marriage -- Whether the petitioner can be allowed to marry under-trial in jail premises? – Held, the marriage can only be performed outside the jail as the jails cannot be converted into marriage palaces.

(Para 29, 30)

A. Constitution of India, Article 226 -- Challenge to writ order by way of writ petition – Maintainability of -- A judgment passed in one writ petition cannot be challenged by filing another writ petition under Article 226 -- Under Article 226, High Court cannot issue a writ of certiorari to set aside the order/judgment passed by another writ Court, either in Single, or Division Bench, which had passed such judgment, in exercise of similar jurisdiction under Article 226.

(Para 23-28)

B. Constitution of India, Article 226 -- Writ order – Allegation of fraud played upon court – Challenge to writ order by way of writ petition, subsequently by way of LPA -- Pleadings were all before the learned Single Judge who decided earlier writ, including the amended written statement filed by the Chandigarh Housing Board and the same were also duly referred to by the learned Single Judge in his judgment -- Board had resisted private respondent’s claim for allotment on all the grounds now being given by the appellant – Appellant had, during pendency of that petition, made an application for impleadment therein which was dismissed and the order became final – Whether or not the judgment itself, after having considered all the points raised, is correct or otherwise, would have been a matter to have been decided in appeal -- If the petitioner himself was also aggrieved, he could also very well have availed of his remedies against the dismissal of his application for impleadment, as also the judgment itself -- Neither the Housing Board, nor the appellant availed of that remedy – No interference required in that judgment, when it has not been appealed against.

(Para 38-43)

A. Constitution of India, Article 226 – Concealment of facts -- Notice of motion was got issued on concealment of facts -- Petitioner has no right to be heard. Prestige Lights Ltd.’s case (2007) 8 SCC 449 relied.

(Para 9)

B. East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (50 of 1948), Section 42 – Review – Power of Director, Consolidation -- Director, Consolidation of Holdings has no power to review his previous orders.

(Para 10,11)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Penal Code, 1860 (45 of 1860), Section 420 -- Constitution of India, Article 20(1) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 300(1) -- Double jeopardy – Conviction u/s 138 of NI Act – Trial and punishment under Section 420 IPC – Permissibility of – Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution -- While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once' -- Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts – Held in the case although the offences are different but the facts are the same -- Hence, Section 300(1) of Cr.P.C. applies -- Consequently, the prosecution u/s 420, IPC was barred by Section 300(1) of Cr.P.C.

(Para 7, 8)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 374(3), 378(4), 397, 401 – Constitution of India, Article 136 -- Cheque bounce case – Remedies available -- Offence u/s 138 triable by a Judicial Magistrate First Class (JMFC) -- After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.

-- In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.

-- In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.

(Para 14)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143, 147 -- Cheque bounce case – Framing of Guidelines for compounding of offence :

THE GUIDELINES

(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 15, 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case – Multiple complaints – Controlling of -- It should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction -- Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed u/s 200 of the CrPC -- If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.

(Para 16)

D. Constitution of India, Article 142 -- Negotiable Instruments Act, 1881 (26 of 1881), Section 138, Section 147 – Code of Criminal Procedure, 1973 (2 of 1974), Section 320 -- Guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain – It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act -- Scheme contemplated u/s 320 of the CrPC cannot be followed in the strict sense -- In view of the legislative vacuum, no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act -- Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 17)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – SICA proceedings -- Maintainability of complaint u/s 138 of NI Act -- Section only creates an embargo against disposal of assets of the company for recovery of its debts -- Purpose of such an embargo is to preserve the assets of the company from being attached or sold for realisation of dues of the creditors -- Section does not bar payment of money by the company or its directors to other persons for satisfaction of their legally enforceable dues -- Section 22 SICA does not create any legal impediment for instituting and proceeding with a criminal case on the allegations of an offence u/s 138 of the NI Act against a company or its Directors.

(Para 18)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – Company declared Sick -- Maintainability of complaint u/s 138 of NI Act -- 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 that a criminal case for the alleged offence u/s 138 NI 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 -- 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 then it cannot be said that the offence u/s 138 NI 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 -- 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.

(Para 19, 20)