JUDGMENT:- In all these matters, the common question that has been raised is "Whether a complaint under Section 138 of Negotiable Instruments Act, is maintainable when the complainant receives an intimation of dishonour from the banker of the drawer to the effect that "the signature of the drawer does not tally" or the remarks of the bankers are "Drawers signature differs from the specimen signature ?"."

2. In other words, when the Negotiable Instruments Act and more particularly Section 138 thereof permits filing of a complaint alleging commission of offence under Section 138 of N.I. Act on the ground that the dishonour of cheque is for insufficiency etc. of the funds is such a complaint tenable or the words are restrictive in nature, hence not capable of a wide meaning. Thus, assuming that the substantive provision is restrictive, yet, considering the title of the section in question, whether a complaint can be filed under Section 138 even if the endorsement or bankers slip is to the afore mentioned effect.

3. The facts in Criminal Application No. 4434 of 2009 need be noted for the purpose of appreciating the rival contentions. The first-respondent complainant filed a complaint before the Metropolitan Magistrate, 31st Court, Vikhroli, Mumbai being Case No.437/SS/2009 against the petitioner, who is accused no.4. It is alleged that the complainant is a proprietory of M/s. Jai Ambe Enterprises, which is a proprietory concern. It is stated that the first accused is a company incorporated under the Companies Act, 1956. Accused nos.2 and 3 are directors and authorised signatories of accused no. 1 , whereas, accused nos.4, 5 and 6 are also authorised signatories. Each of these accused are responsible for the day to day affairs and management of accused no.1. They were responsible for the day to day affairs and management when the cheques, which are subject matter of the complaint were presented and returned dishonoured, so also, when the cause of action arose.

4. It is alleged that during their course of business, accused nos.2 to 6 on behalf of the first accused placed orders with the complainant for delivery of goods and the complainant sold and delivered goods worth crores of rupees. There was no dispute regarding quality and quantity of the goods sold. There were invoices/bills forwarded and as per the Books of Accounts maintained by the complainant, a sum of Rs.8,49,69479.50/- was due and payable.

5. It is alleged that after issuance of several cheques in discharge of their liability and particularly towards the goods sold and delivered and when the funds could not be arranged for honouring the cheques that the accused by their letter dated 30/12/2008 made false and baseless allegations, disputing the rate of the goods sold and delivered.

6. It is alleged that for the first time, accused no.1 informed the firm that a portion of the bank account of accused no.1 has been changed due to alleged mal-practices by employees of accused no.1, particularly, the petitioner who is accused no.4. Thereafter, there was correspondence on this issue and it is alleged that the cheques which are subject matter of the complaint were signed by accused nos.5 and 6 being authorised signatories of the accused no.1 with the consent and knowledge of accused nos.2, 3 and 4 in discharge of their liabilities and the three cheques of Rs.5,86,077/- when presented came to be returned with the bankers memo which reads as under:

"Drawers signature differs from the specimen signature".

7. Thereafter, it is alleged that the Statutory Notice [S.138(b)] was sent to which no reply was received for a considerable length of time, until, the letter dated 26/02/2009. By this letter, the accused made false and baseless allegations and there was a rejoinder therefor addressed to the same.

8. It is upon these allegations and contending that there was enough opportunity to the accused to replace the returned cheques with fresh cheques that the offences punishable not only under S

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