Sudershan Kumar Misra, J.

1. The petitioners have moved this Court under Section 482 of the Code of Criminal Procedure. They pray that the summoning order issued by the Metropolitan Magistrate, Patiala House, New Delhi on 11. 04. 2008, in criminal complaint No. 399/1 of 2007, under Sections 138, 139 and 141 of the Negotiable Instruments Act, 1881, be quashed.

2. The first petitioner is a Company registered under the Companies Act. Its registered office is at Pune. Petitioners No. 2 and 3 are the Directors of the first petitioner. The respondent is also a company. It is registered at New Delhi. A contract was entered between the first petitioner and the respondent whereby the first petitioner was to set up a ‘Mutli Effect Evaporater Distillation Plant for Bio-Methanated Spent Wash’ for the respondent. By way of security for due performance of that contract, the first petitioner issued an undated cheque favoring the respondent for Rs. 29,50,000/- drawn on Bank of Maharashtra, Model Colony Branch, Pune. This cheque is stated to have been handed over to the respondent company on 15. 10. 1995.

3. The petitioners allege that although they fulfilled their commitment for which the undated cheque was given as a security, the respondent never returned the cheque. It is the petitioners’ case that instead of returning the cheque, the respondent entered the date 28. 1. 2008 on that cheque and presented it for collection through HDFC Bank Ltd, New Friends Colony, in February, 2008. On 6. 02. 2008 the said cheque was returned unpaid with the remarks “Payment Stopped by the Drawer. ” Thereafter on 16. 2. 2008, a notice under Section 138, Negotiable Instruments Act was sent by the respondent to the petitioners demanding payment of the cheque amount of Rs. 29,50,000/- within 15 days of receipt of the notice. No reply was sent by the petitioners to this notice. Thereafter on 7. 4. 2008, the respondent filed the impugned criminal complaint. On 11. 4. 2008, the Ld. Metropolitan Magistrate took cognizance of the case and issued the impugned order summoning the petitioners under Sections 138, 139 and 141, Negotiable Instruments Act.

4. It is the petitioners’ case that the Trial Court has failed to appreciate the fact that even if the allegations in the complaint are taken on their face value and accepted in their entirety, they do not constitute the offence as alleged and that therefore, no prima facie case is made out against them. Learned counsel for the petitioners contends that the cheque in question was actually without consideration because, according to him, the cheque was issued by his clients to ensure supply of the goods and not for guaranteeing the erection, commissioning and performance of the plant and machinery. He states that therefore, the respondent had no right to encash the said cheque for any perceived deficiency in performance of the plant and machinery.

5. Be that as it may, the tendering of the cheque was a condition precedent for the execution of the contract. Even according to the petitioners themselves, this cheque constituted part of a promise made by the petitioners to the complainant. However, according to counsel for the petitioners, the complainant was entitled to encash the cheque, only in case the complainant failed to receive the goods and equipment envisaged, and not otherwise. Looking to these facts, it is clear that when the cheque was made out and handed over to the complainant, it was admittedly against a valid consideration. Whatever may have been the status of the cheque thereafter is for the petitioners to prove in their defence.

6. Learned counsel for the petitioners further contends that even according to the respondent, the cheque was issued in the year 2005 and presented in February, 2008, and therefore, in view of proviso (a) to Section 138 of the Negotiable Instruments Act, the complaint is not maintainable as the cheque was presented beyond the period of 6 months from the date it was dra