Heard.

2. Rule. By consent, Rule made returnable forthwith. By consent, heard forthwith.

3. The petitioners are the accused nos.1 and 3 in Criminal Case No.11/SS/2012 pending before the Metropolitan Magistrate, 71st Court, Mazgaon, Mumbai. The case is in respect of an offence punishable under section 138 of the Negotiable Instrument Act and arises on the basis of a complaint filed by the respondent no.2 herein. One Amit Saini is the accused no.2 in the said case. He is the son of the first petitioner (accused no.1) and the husband of the second petitioner (accused no.3). After examining the respondent no.2 on oath in accordance with the provisions of section 200 of the Code of Criminal Procedure, the Magistrate issued process against all the three accused mentioned as such, in the complaint. The petitioners challenged the issue of process against them, on the ground that the cheques in question had been issued only by the accused no.2 and not by the petitioners or any of them, by filing a revision in the Court of Sessions but the revision application came to be dismissed. The petitioners have now approached this court by filing the present writ petition.

4. The contention of the petitioners is that the cheques in question had not been issued by them or by any of them. It is also contended that the account on which the cheques had been drawn is not maintained by any of the petitioners.

5. That this is so, is not a dispute. The contention of the respondent no.2 is, however, that the cheques had been issued by the accused no.2 – Amit Saini – in discharge of the liability which was of all the accused.

6. Mr.Arote, learned counsel for the respondent no.2 submitted that the facts of the case are rather peculiar. He pointed out that previously the respondent no.2 had filed cases against all the accused i.e. the present petitioners and the said accused no.2 – Amit Saini – in respect of the offence punishable under section 138 of the Negotiable Instruments Act. He submitted that as the parties were having good relations between them, it was decided to settle the matters and a Memorandum of Understanding was arrived at between the parties on the basis of which the previous complaints filed by respondent no.2 against the petitioners and the said Amit Saini were withdrawn. Under the said Agreement, or Memorandum of Understanding, it was decided that the petitioners and the said Amit Saini would admit their liability to pay the amounts in question and that 60 post dated cheques, (details of which were mentioned in the schedule annexed to the Memorandum of Understanding), would be given to the respondent no.2. As aforesaid, on the basis of this understanding, the previous case filed by the respondent no.2 against the petitioners and Amit Saini were withdrawn. Some of the cheques which were given pursuant to the settlement and the Memorandum of Understanding were honored, but subsequently, the remaining cheques were dishonored. Interestingly, it is an admitted position that the 60 post dated cheques which were given to the respondent no.2 on the basis of the Memorandum of Understanding, had been signed by the said Amit Saini the accused no.2 and the account on which they were drawn was maintained by him in his individual capacity and in his own name. As a matter of fact, this has been stated in the complaint itself (para 10).

7. Indeed, it appears that the cheques which are the subject matter of the said complaint had been issued by the accused no.2 in discharge of the liability of himself and also of the petitioners. It is on this ground that the learned counsel for the respondent no.2 contends that the petitioners also should be liable to be prosecuted with respect to the said offence. According to him, the facts of the present case are rather peculiar and that it cannot be overlooked that the petitioners and the said accused no.2 had somehow made the respondent no.2 to believe that the matters would indeed be settled and the res