S. B. SINHA, J.

( 1 ) LEAVE granted.

( 2 ) APPLICATION of Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") in the facts and circumstances of the case is involved in this appeal which arises out of a judgment and order dated 19. 02. 2007 passed by the High Court of Judicature at Allahabad in Criminal Revision no. (5) of 2003.

( 3 ) M/s. Mediline India (P) Ltd. is a company registered and incorporated under the Companies Act, 1956. It had two directors, viz. , Shri Ashish narula and Shri Manish Arora. The Company took loan for a sum of Rs. 5,00,000/ -. Two cheques bearing Nos. 0989637 dated 30. 11. 1999 and 0989638 dated 10. 12. 1999 for Rs. 3,00,000/- and Rs. 2,00,000/- respectively were drawn on Vijaya Bank, Navyug Market, Ghaziabad in favour of the respondent No. 1. On presentation, they were returned unpaid with the remarks "insufficient fund".

( 4 ) A complaint petition was thereafter filed by the respondent No. 2 (complainant) against Shri Manish Arora and Shri Ashish Narula under section 138 of the Act and Section 420 of the Indian Penal Code.

( 5 ) APPELLANTS were not signatories to the cheques. Appellant No. 1 became a director of the said Company only on 15/2/2000. Appellant No. 2 became a director on 1/12/1994. Both of them are said to have resigned from the post of directorship on 30/11/2000.

( 6 ) DURING pendency of the said complaint petition, an endeavour was made to resolve the disputes and differences between the parties. An agreement was entered into by and between the parties in terms whereof it was agreed that if a cheque for a sum of Rs. 5,02,050. 00 is issued, the complaint petition would be withdrawn. Manish Arora issued a cheque for the said sum on 29/7/2000 which was also on presentation returned on 29/1/2001 with the remark "insufficient fund". It is stated that an agreement was also entered into by and between Shri Ashish Narula and the company that the liability in question was his personal one. He allegedly affirmed an affidavit and executed an indemnity bond on 26/2/2000.

( 7 ) COMPLAINANT - respondent No. 2, however, filed another complaint petition with regard to the return of the said cheque dated 29/7/2000 not only against Shri Ashish Narula and Shri Manish Arora but also against the appellants herein.

( 8 ) APPELLANTS were summoned in the said complaint case. They filed an application before the Chief Judicial Magistrate for setting aside the order summoning them. The same was dismissed. A revision application filed thereagainst has also been dismissed by the High Court by reason of the impugned judgment.

( 9 ) MR. Rajeev Sharma, learned counsel appearing on behalf of the appellants, urged that the second complaint petition is not maintainable.

( 10 ) MR. Brij Bhusan, learned counsel appearing on behalf of the respondents, however, supported the impugned judgment.

( 11 ) SECTION 138 of the Act reads, thus:

"138 - Dishonour of cheque for insufficiency, etc. , of funds in the account where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the p