1. The basis issues which involved in this case are :-

(i) Whether the complaint dated 13.12.2007 (Annexure P-4) filed under Section 138 of the Negotiable Instruments Act (for short “the N.I. Act”) by respondent against the petitioner is not maintainable in law inasmuch as, it is pleaded, that the same is based upon the dishonor of a cheque which was issued by petitioner No.2 in lieu of a debt which was not legally recoverable as alleged at the time of issuance of the said cheque?

(ii) Whether the summoning order is sustainable in the facts of this case in view of the judgment of Apex Court delivered in Special Leave to Appeal being SLP (Crl.)1785/2001 decided on 10.9.2001?

2. This petition has been filed by the accused persons who were summoned to face the trial in this case of a charge under Section 138/141 of the N.I. Act vide order dated 21.01.2008, which order was passed by the trial court taking note of the averments made in the complaint which was filed in support of the complaint. The same reads as under:-

Complainant examined by way of affidavit. Documents filed along with complaint perused. Material on record prima facie discloses commissionof an offence u/s 138 N.I. Act by accused. Let accused be summoned on filing of PF/RC, approved courier, dasti for 25.03.08. Steps be taken within a week.

3. To appreciate the factual matrix of this case, it would be necessary to take note of some of the paragraphs of the complaint which are reproduced hereunder:-

2. That the accused no.2 in the month of Jan 2002 approached and asked from the complainant for a sum ofRs.6,00,000/- (Rs. Six Lakhs Only) for the personal needs/friendly loan as the accused was facing some financial crises. On the accused’s request the complainant gave you a sum of Rs.6,00,000/- (Rs. Six Lakhs Only) through cheque no.340787 drawn on Punjab National Bank, Lawrence Road Branch, to the accused no.2 as friendly loan. The said cheque was issued in favour of noticee no.1 and was debited in the account of the complainant on 01-02-2002.

3. That thereafter the complainant waited for some time as the accused had promised to repay the friendly loan after six months but he failed to do so. After considerable persuasion from the complainant the accused no.2 in lieu of the above mentioned friendly loan, issued two cheques bearing no.817758 dated 27-04-2006 and another bearing no.817760 dated 31-05-2006 each for a sum of Rs.50,000/- (Fifty Thousand Only) each, each drawn on Bank of India Rajendra Place Delhi, Branch in favour of the complainant towards the part payment against the outstanding dues towards the accused. The said cheques were however enchased on presentation.

4. That thereafter the complainant again waited for some time and after considerable persuasion from the complainant the accused no.1, again in lieu of above mentioned friendly loan, issued two cheques bearing nos.817772 dated 14-08-2006 and another cheque bearing no.817773 dated 30-08-2006 each for a sum of Rs.50,000/- (Fifty Thousand Only) each, each drawn on Bank of India Rajendra Place Delhi, Branch in favour of the complainant towards the part payment against the outstanding dues towards the accused. The said cheques were dishonored on presentation but however the complainant did not take any action on the request of the accused that the entire payment will be cleared very shortly.

5. That again after great persuasion from the complainant the accused no. 2 issued one cheque bearing no.350562 dated 05-05-2007 drawn on ICICI Bank Limited, Punjabi Bagh branch, New Delhi for a sum of Rs.50,000/- towards the part payment against the outstanding dues towards the accused. That the complainant presented the said cheque with the banker but the same was returned unpaid by the accused banker with the remarks “Funds Insufficient” vide memo dated 07-05-2007. The complainant contacted the accused and the accused requested the complainant to present the same after some time. The