JUDGMENT :

Rohit B. Deo, J.

Heard Shri Anil Mardikar, the learned Senior Counsel with Shri S.L. Kotwal, for the petitioners and Smt. Shilpa Tapdiya, the learned Counsel for the respondents. With consent the petition is finally heard at the admission stage.

2. The petitioners are assailing the order dated 20.04.2018 rendered by the 25th Joint Civil Judge (Junior Division) and Judicial Magistrate First Class, Nagpur in Criminal Complaint Case 3866 of 2011 of issuing process for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('Act'). Prior to the issuance of process, vide order dated 07.12.2017 the complainants were permitted to amend the complaint, which order is also assailed herein.

3. The petitioners shall be referred to as the accused and the respondents as complainants for the sake of convenience.

4. Accused 1 is a Company Registered under the Companies Act. Accused 2 is the Managing Director and accused 3 is the Chief Financial Officer of accused 1 company.

5. The accused contend that the company was registered with the Board for Industrial and Financial Reconstruction (BIFR) w.e.f. 03.12.2008 and was declared a sick unit on 16.07.2009 and a direction under Section 22-A of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA) restraining the company from disposing of the assets was issued.

6. The accused contend that the company was in the business of manufacturing and selling rayon, yarn, nylon, tyre, cord and chemicals and has a manufacturing unit at Mohone, Kalyan, District Thane. The company entered into coal supply agreement with Western Coal Fields Limited, Nagpur to cater to the coal requirements of the manufacturing unit. Complainant 1 M/s Fuel Corporation of India acted as an agent of accused 1 company for lifting the coal and transporting the same to the manufacturing unit of the accused company. It is contended that complainant 1 was also providing trade credit to the accused company for the cost of coal and/or transportation costs, against the security provided by the accused company in the form of letter of credit/bank guarantee/post dated cheques.

7. The accused company contends that cheques were issued in favour of the complainant 1 company towards security and for advance payment against the future supply. The accused company asserts, that the cheques were issued with the specific stipulation that the cheques should not be deposited in the Bank without written confirmation from the accused company. The further assertion is that the accused company did not receive any material against the cheques handed over to the complainant company as security. Covering letter dated 12.06.2010, 24.06.2010 and 24.06.2010 are annexed to the petitions as Annexures B, B1 and B2 to substantiate the said assertions.

8. The accused company contends that due to financial problem a reference under Section 15 of the SICA was made to BIFR which was received by the BIFR on 03.12.2008 and registered as Case 55 of 2008 and the BIFR passed an order dated 16.07.2009 (Annexure-C) which inter alia declared the accused company as sick unit.

9. The accused contends that the complainant company intervened in the proceedings vide Miscellaneous Application under reference 125 of 2012 inter alia seeking impleadment and a direction to the accused company to release payment of Rs.605.50 lakhs and in the alternative to permit the complainant company to take recourse to recovery proceedings. The accused company asserts that the said application was disposed of by the BIFR vide order dated 22.01.2014 which reads thus:

"Having considered the submissions of the parties during the hearing and material on record the Bench allowed the MA No. 125 of 2012 to the extent of implement and directed the parties to reconcile the account and Coal quantity and submit a report to OA. The MA was accordingly disposed off."

10. The petitioner contends that without obtaining the consent of the board, the complainants filed complaint under