1.0. Present Criminal Miscellaneous Application has been preferred by the petitioners-original accused to quash and set aside the Criminal Case No.2088 of 2002, pending in the Court of learned JMFC, Surat for the offence under Section 138 of the Negotiable Instruments Act, lodged by respondent no.1 herein.

2.0. That respondent no.1 herein-original complainant has instituted / filed complaint being Criminal Case No.2088 of 2002 in the Court of learned JMFC, Surat against the petitioners and other for the offence under Section 138 of the N.I. Act alleging inter alia that he became the Director of original accused no.1 company on 1.4.2001. That thereafter, he put by way of deposit/ loan a sum of Rs.3 lacs, which was accepted by the original accused no.1 company through original accused no.2. That thereafter, the complainant resigned as a Director on 11.9.2001 and at that time he asked for returned of Rs. 3 lacs and he was given cheque of Rs. 3 lacs dated 15.3.2002 drawn on Progressive Mercantile Cooperative Bank, Naranpura, Ahmedabad drawn from Bank Account of the original accused no.1 company, which was signed by the original accused no.2. It is further alleged in the said complaint that time and again he was told not to deposit the said cheque and thereafter he was told to deposit the said cheque on 5.9.2002 with an assurance that as and when said cheque was deposited, the same shall be honoured. It is further alleged in the said complaint that accordingly petitioners deposited the said cheque in his Bank Account and by communication dated 14.9.2002 the same has been returned with an endorsement “insufficient fund”. It is further alleged that thereafter he served a statutory notice upon the accused persons to make the payment under the aforesaid cheque, which was dishonoured and despite the same, amount has not been paid and therefore, it is alleged that accused persons have committed an offence under Section 138 of the N.I. Act. That the learned Magistrate by order dated 12.11.2002 has been pleased to issue process against the petitioners and others for the offence under Section 138 and 142 of the N.I. Act. Hence, being aggrieved and dissatisfied with the same, the petitioners-original accused nos. 1 and 2 have preferred Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure to quash and set aside the impugned complaint/ criminal case.

3.0. Shri Trivedi, learned advocate for the petitioners -original accused nos. 1 and 2 has vehemently submitted that as such the petitioners have not committed any offence as alleged under Section 138 of the Act. It is submitted that as such the cheque in question was given to the complainant by way of security and therefore, when the cheque in question was given by way of security and the same is dishonoured, it cannot be said that the petitioner has committed any offence under Section 138 of the N.I. Act. It is submitted that if the cheque is issued for ascertain amount of dues and / or debts and same is dishonoured then and then only it can be said that the offence under Section 138 of the N.I. Act is made out. Therefore, it is submitted that when the cheque in question was given under MOU and as a security and even as per the MOU, the cheque was to be exchanged and new cheque was to be obtained, no case is made out for the offence under Section 138 of the Act as the ingredients of Section 138 are not satisfied. In support of his above submission, he has relied upon the decisions of the Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani vs. State of Kerala and anr. reported in AIR 2006 SC 3366 and in the case of Sudhir -Kumar Bhalla vs. Jagdish Chand & Others reported in AIR 2008 SC 2407.

3.1. Shri Trivedi, learned advocate for the petitioners has further submitted that even the impugned complaint/ criminal case deserves to be quashed and set aside on the ground of suppression of not pointing out or stating anything with respect to MOU dat