Heard Mr. S.S. Joshi, Adv. for the applicant and Mr. D.M. Kale, A.P.P. for respondent no.6.

2. ADMIT.

3. Mr. D.M. Kale, A. P. P. waives service on behalf of respondent no.6 4. By this application under Section 482 of the Code of Criminal Procedure, the applicants have questioned the judgment and order dt. 31.7.2010 delivered by the learned Additional Sessions Judge, Akola in Criminal Revision Application No.240 of 2009 whereby the order of issuance of process dt.18.6.2009 passed by the learned Judicial Magistrate, First Class (Court No.3). Akola in Summary Criminal Case No.1350 of 2009 was set aside. Resultantly, the complaint was dismissed on 31st July, 2010.

5. The facts, in brief, are as under:

The complaint was instituted by the present applicants u/s.138 of the Negotiable Instruments Act on the ground that they are the only legal heirs of deceased Mahendrabhai Patel who expired on 30th December, 2008. According to the applicants, the accused firm M/s. Baheti Automobiles issued a cheque bearing No. 168977, dt. 1.2.2009 drawn upon the Akola Urban Co-operative Bank Ltd., Akola, Branch at Adarsh Colony, Akola for a sum of Rs.50,000/-. The cheque was drawn in favour of the deceased Mahendrabhai Rambhai Patel. It is the contention of the applicants that, in the capacity of legal representatives of said Mahendrabhai Patel, they had presented the cheque with a view 10 encash the same in the bank account of deceased Mahendrabhai; however, the cheque was returned dishonoured with the bankers remark "Account seized by Sales Tax Office." The applicants issued demand notice dt.12.3.2009 by Registered Post A/D. as well as under Certificate of Posting. It is their case that although the accused were served, the amount was not repaid as demanded on the basis of the cheque issued in the name of deceased Mahendrabhai. The learned Judicial Magistrate, First Class, Court No.3. Akola issued process against the accused u/s.204 of the Code of Criminal Procedure for an offence punishable u/s. 138 of the Negotiable Instruments Act. The accused were aggrieved by the order of issuance of process and hence, challenging legality, propriety and correctness of the said order, they approached the Sessions Court, Akola vide Criminal Revision No.240 of 2009. The learned Additional Sessions Judge, Akola by the impugned Judgment and Order set aside the order directing issuance of process and dismissed the complaint.

6. The learned Advocate appearing on behalf of the applicants submitted that the learned Additional Sessions Judge ought to have allowed the complaint proceedings to be heard on merits and ought not to have disturbed the order regarding issuance of process. He made a reference to the ruling in the case of Anup Jagdish Agarwal V s. Nilkunj Lalit Shah and Others reported in 2010 (3) Bom.C.R. 167 : [2010 ALLMR(Cri) 25451 in order to submit that, in the complain' proceedings filed by heirs of deceased drawee, after making reference to special rules of evidence and statutory presumptions u/s.118 (g) of the Negotiable Instruments Act, the Bombay High Court agreed with the view that if the original payee is holder in due course, his representative has all his rights and the rights under Sections 138 and 142 of the Negotiable Instrumets Act are applicable to the legal representatives also if he derives title from the holder in due course. It appears that, in para 15, this Court, while recording concurrence with the conclusions reached by the Kerala High Court in a decision reported in 2003 (2) Kerala Law Times 750 (Chandrababu Vs. Remani), also expressed that nothing contrary was brought to the notice of this Court; thus, it was concluded that a complaint can be filed by the legal representatives of the payee and merely because it is so filed, it cannot be held that it is not maintainable and once the complaint can be held to be maintainable, any larger issue need not be gone into at the prima facie stage. Whether the presumption is applicable or whe