1. This is a petition filed by the original accused person challenging issuance of process in Summary Criminal Case No. 2972 of 2004, filed in the Court of 2nd Jt. Judicial Magistrate, First Class, Jalgaon, which order was confirmed in Criminal Revision Application No. 142 of 2006 by the Additional Sessions Judge-2, Jalgaon, on 23.06.2009.

2. Rule. Rule made returnable forthwith. With consent of learned advocates appearing for the parties, this petition is heard finally at the stage of admission.

3. It is no more disputed that the respondents M/s. Jain Irrigation Systems Ltd., Jalgaon filed Criminal Case No. 2972 of 2004 against the present petitioners for commission of offence punishable under Section 138 of the Negotiable Instruments Act. It is alleged that the respondent company has business of manufacturing/marketing PVC pipes, irrigation system and components etc. Present petitioner No. 2 is the Managing Director of petitioner No.1 and it is also doing business of PVC pipes, drip irrigation system and components, as dealer of complainant/respondent company. From time to time the petitioners purchased irrigation system and components from the respondent company on credit on the terms and conditions mutually agreed upon.

4. As per the complaint lodged by the respondent, amount of Rs. 50,90,622/- was due and present petitioners/accused issued cheque bearing No. 625844 dated 01.12.2003 for the sum of Rs. 50,90,622/-, drawn on the State Bank of India, Commercial Branch, Securnderabad. When said cheque was presented at Jalgaon Branch of the State Bank of India, same came to be dishonoured and therefore notice dated 23.06.2004 was issued to the present petitioner and same was received by the petitioner on 26.08.2004. Inspite of receipt of said notice, payment was not made and therefore complaint was filed for offence punishable under Section 138 of the Negotiable Instruments Act.

5. The learned advocate Shri B.L. SagarKillarikar for the petitioner drew my attention to Exh. “B” letter dated January 7, 2003 issued by the petitioner No.2 to the Credit Controller of respondent company. It is as under:-

“We confirm the discussion we had with you and we have already sent cheques and as informed, we are sending a blank cheque to be presented in the month of May, 2003 after discussing and finalizing the amount. By that time all the pending issues may be sorted out. The details of the cheque enclosed are as follows:-

S. No. Cheque No. Name of the Bank 1 625844 State Bank of India We shall be glad if you can close the matter and start the dispatch as expected without any further clarification. You have seen our organization and you know our commitments and if there is any delay our routine work will suffer and our overhead cost will increase unnecessarily.

Please confirm the dispatch details urgently to us.”

6. He also drew my attention to another letter dated June 30, 2004, issued by the President – (Marketing) of respondent company to the petitioner No.1. Subject of the letter is ‘Clearing of Outstanding’. There is reference to the letter by petitioner No.2 sent on 22.06.2004 and it is stated “As you are aware, there is huge outstanding on your account and as of this day the debit balance exceeds Rs. 31 lacs.”. By the letter full payment was expected within 7 days of receipt of the letter. It is argued before this Court that if as on June 30, 2003, amount of Rs. 31 lacs was outstanding, how amount of Rs. 50,90,622/- would be outstanding on 01.12.2003 as mentioned in paras 4 and 5 of the complaint. It is further argued that on 25th May, 2004, the Credit Controller of respondent company issued letter to petitioner No.1 and stated that the total amount due was Rs. 32,49,839/-. In reply affidavit it is not mentioned that there were subsequent transactions. Relying on these documents it is argued that the blank cheque issued in good faith with letter dated 7th January, 2003 (Exh. “B” with the petition) has been misused and fa