JUDGMENT ARUN KUMAR GOES, J.—Both these revision petitions have been taken ftp together for the purpose of disposal since the common question of law es for consideration and the facts are being noticed hereinafter. 2. Cr. Revision Petition No. 88/97: A complaint under Section 138 of the Negotiable Instruments Act was filed by the respondent-Bank agaisnt the petitioner on the allegations that M/s. Wadhawa Pharmochem Private Limited, Kala Amb had obtained certain financial assistance from it. The raw material, semi-finished and finished goods this company stand hypothecated with the respondent-Bank and the sale proceeds of such products were to be deposited by the company in its cash credit limit account with the Bank. This company sold goods worth Rs. 8,16,500.35 to the petitioner agaisnt three bills detailed in para No. 3 of the complaint I and issued a cheque favouring M/s. Wadhawa Pharmochem Private Limited I for the said amount drawn at Bank of Baroda, Jawahar Nagar, New Delhi. This cheque was purchased by the respondent-Bank and 75% payment was made on the assurance that the bills would be retired by the petitioner before taking delivery of the goods through transport. Thus, the respondent-Bank became the holder in due course of the cheque in question. The payment of this cheque was made, as aforesaid, to M/s. Wadhawa Pharmochem Private Limited. However, when the cheque was sent for encashment, it was not encashed by the banker of the petitioner. Notice was issued by registered post as well as under; certificate of point on 10.7.1996. Since the payment was not made within the stipulated I period under Section 138 of the Negotiable Instruments Act, hence the complaint i/.e. Case No. 92/3 of 996, titled as State Bank of India v. Munish Mehra, was filed by the respondent-Bank wherein the petitioner has been ordered to I be summoned. The date of service of the notice is neither mentioned in the I complaint nor it is given in the preliminary evidence of the respondent-Bank which was recorded on 19.11.1996. During the course of hearing of this revision ! petition, affidavit of Shri S.S. Randhawa was filed on behalf of the respondent- Bank wherein, in para No. 4, it was specifically stated by the deponent that on checking the original postal record, he found that the registered letter was I delivered to Munish Mehra on 14.7.1996. During the course of hearing of this revision ! petition, affidavit of Shri S.S. Randhawa was filed on behalf of the respondent- Bank wherein, in para No. 4, it was specifically stated by the deponent that on checking the original postal record, he found that the registered letter was I delivered to Munish Mehra on 14.7.1996. In the affidavit filed to counter the [ averments made in the affidavit on behalf of the respondent-Bank, this fact has not been specifically denied. In fact, the reply is evasive and vague and its effect would be considered hereinafter. 3. Cr. Revision Petition No. 89/97 : In this Case also, a complaint under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act, has been filed by the respondent-Bank against the petitioner on the allegations that a cheque for a sum of Rs. 5,30,700 was issued by the petitioner favouring M/s. Wadhawa Pharmochem Private Limited which was drawn at Indian Overseas Bank, New Delhi. Since M/s. Wadhawa Pharmochem Private Limited, Kala Amb had obtained certain financial assistance from the respondent-Bank, its raw material, semi-finished and finished goods stood hypothecated with the respondent-Bank and the company was to deposit the sale proceeds in its cash credit limit account with the respondent-Bank. The cheque issued by the petitioner to this company was purchased by the respondent-Bank and 75% payment against it was made. Thus, the Bank became the holder of the cheque in due course. The cheque when sent for collection by the respondent-Bank to the banker of the petitioner, it was dishonoured with the remarks not arranged. Notice dated 14.8.1996 under Section 138 of the Act was issued to the petitioner which was served upon him on 20.8.1996. Since the payment was not made within the stipulated period, therefore. Case No. 95/3 of 1996, titled as State Bank of India v. Grow Gold Exim and Leasing Limited, was filed in the Court of the Chief Judicial Magistrate, Sirmaur at Nahan. After recording the preliminary evidence, the trial Court has ordered that there exists a strong prima facie case against the company, the director of which is stated to be Munish Mehra, as such, he was ordered to be summoned. Hence, this revision petition to quash the order for summoning the company through Munish Mehra. 4. After recording the preliminary evidence, the trial Court has ordered that there exists a strong prima facie case against the company, the director of which is stated to be Munish Mehra, as such, he was ordered to be summoned. Hence, this revision petition to quash the order for summoning the company through Munish Mehra. 4. Learned counsel appearing for the petitioner in both the cases has forcefully urged that the date of notice in the case filed against Munish Mehra (In Cr. Revision Petition No. 88/97)is not mentioned which was necessary for computing the time under Section 138, Proviso (C) of the Act and, therefore, the Court below has fallen into error in passing the impugned order. It was further urged that this is a case of no evidence because there was no debt or other liability within the meaning of Section 138 of the Act, nor there is any privity of contract between the parties. Liability, if any, was that of M/S. Wadhawa Pharmochem Private Limited. 5. In this behalf, reference was made to certain communications exchanged between the petitioner and the said company. Regarding cheques issued in both the cases, it was forcefully urged by Shri Kanwar Kuldip Singh that the cheques were Account Payees. Thus, the amount was to go to the account of M/s. Wadhawa Pharmochem Private Limited and not to the respondent-Bank. In the face of this position, no offence has been committed according to the learned Counsel for the petitioner and lastly it was urged that the trial Court has passed the impugned order on 10.1.1997 summoning the petitioner in a mechanical manner without application of mind, as in the said order, it is not made clear unde what provisions of law, the offence is made out, for which the process has been issued against the petitioner Another argument which was pressed into service in support of these revision petitions is that these cases have been filed by the respondent-Bank in connivance with M/s. Wadhawa Pharmochem Private Limited. The liability qua the Bank, if any, was that of the company and not of the petitioner. Reliance was also placed on a number of decided cases by Shri Kuldip Singh, reference to which shall be made hereinafter. 6. The liability qua the Bank, if any, was that of the company and not of the petitioner. Reliance was also placed on a number of decided cases by Shri Kuldip Singh, reference to which shall be made hereinafter. 6. On the other hand, Shri Sood, learned Counsel appearing for the respondent-Bank while controverting all the pleas raised in support of both the revision petitions, pointed out that both the revision petitions are not maintainable and whatever has been urged here in this Court, needs to be brought to the notice of the Court below and on being satisfied, the trial Court may accept such pleas. It was further pointed out with reference to preliminary evidence recorded in both the cases as well the documents placed on record before the trial Court that it clearly made out that offence under Section 138 of the Act has been prima facie committed by the petitioner and simply because the section is not mentioned in the impugned order will not make the process defective. On the question of non-service of notice in the case, out of which Criminal Revision Petition No. 88/97 has arisen, Mr. Sood placed reliance on affidavit of Shri S.S. Randhawa filed in the Court and its reply by way of counter-affidavit filed by the petitioner. It was further pointed out by Shri Sood that notice had been sent by registered cover as well as under certificate of posting and, therefore, it cannot be said that the notice had not been served on 14.8.1996. In case, it has not been served on this dated the petitioner could specifically deny this fact, which he has not done. Regarding cheques in both the cases being Account Payees, Shri Sood points out that such a crossing would not restrain its negotiability as it was intended to further protect the drawer against theft or loss. Further it was pointed out that it was merely a direction to Bank that drawee desires to pay the particular cheque into the Bank which keeps the account of the payees. Alternatively, it was pointed out that since it did not contain the additional crossing "Not Negotiable", the cheques in both the cases being negotiable instrument within the meaning of Section 6 of the Act, therefore, the plea to the contrary was without any basis. Alternatively, it was pointed out that since it did not contain the additional crossing "Not Negotiable", the cheques in both the cases being negotiable instrument within the meaning of Section 6 of the Act, therefore, the plea to the contrary was without any basis. Reliance was also placed on decided cases in support of the contentions raised by the learned Counsel thus praying for dismissal of the revision petitions. 7. In both the cases, issuance of cheques by the petitioner is not in dispute. His grievance is that the drawee i.e. M/s. Wadhwa Pharmochem had undertaken to return those cheques to the petitioner as and when those are returned by its banker. In this behalf, reliance was placed on certain documents filed along with the revision petitions. These documents are the letters exchanged between M/s. Classic Agencies and M/s. Wadhawa Pharmochem Private Limited, Kala Amb. It may be noticed here that Munish Mehra petitioner is the proprietor of M/s. Classic Agencies and is director of M/s. Grow Gold Exim and Leasing Limited. These documents are all private documents which have been filed in this Court for the first time and thus the question arises whether at this stage, can this Court examine the authenticity and correctness of these documents, answer would be "no". In case the petitioner has a genuine grievance, he could urge the matter before the trial Court. For taking this view, reference can usefully be made to a decided case by this Court in Shri Gopai Chauhan v. Smt. Satya (Indian Law Reports (H.P, Series), Vol. 7, 694) wherein, it has been observed that if the person against whom process has been issued feels that there is no case made out against him on the basis of averments made in the petition, the proper course for him is to move the trial Court for his discharge before evidence is recorded. To the similar effect is the case of N.T. Joseph v. R.S. Sharma [1 (1996) Banking Cases 345] wherein, it has been observed that where only summoning order has been passed and evidence is yet to be recorded, charge is yet to be framed against the petitioner, if any offence is made out, then quashing of the proceedings before the commencement of the trial and leading of evidence would not be proper. Similarly, in the case of State of Haryana and others v. Ch. Similarly, in the case of State of Haryana and others v. Ch. Bhajan Lal and others (AIR 1992, Supreme Court 604), broad principles were laid down for quashing the criminal proceedings to the following effect:— "1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code of the Act concerned, providing efficacious redress for the grievance of the aggrieved party. 7. Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is malicioulsy instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." According to Shri Kanwar, his case is covered under paras 3 and 5. This plea is without any merit. Statement of PW-1 Shri S.S. Randhawa when read with the documents proved on record in preliminary evidence, prima facie makes out case against the petitioner. This plea is without any merit. Statement of PW-1 Shri S.S. Randhawa when read with the documents proved on record in preliminary evidence, prima facie makes out case against the petitioner. As such, no benefit can be obtained by him from this decision. 8. In the case of Satish Mehra v. Delhi Administration and another (1996) 9 Supreme Court Cases 766, it was held that the Court is not debarred from looking into any material produced by the accused so as to ascertain whether there was sufficient ground for proceedings agaisnt him or not. 9. In the facts and circumstances of the present case, this judgment is not applicable as this is a judgment on its own facts. 10. Similarly, in B. Mohan Krishana v. Union of India and others (1996 Cr.L.J. Vol. 1 636), Honble Mr. Justice M.N. Rao (as His Lordship then was) speaking for the Bench has observed as follows:— "49. As Section 138 incorporates strict liability, being a penal provision, it has to be construed strictly. Despite bonafide intentions, if a person has issued a cheque in favour of another person and it is returned unpaid by the Bank, he is liable for prosecution provided the cheque was issued from out of the account maintained by the drawer with a banker for the discharge in whole or in part, of any debt or other liability. The reasons for the returning of the cheque by the Bank must be; (i) the amount standing to the credit of the account of the drawer is insufficient; or (ii) it exceeds the amount arranged to be paid from that account by an agreement made with the Bank. The second condition is attracted normally in cases where the account holder is permitted to have over-draft facility and if the amount for which the cheque was issued is in excess of the amount for which such over-draft facility was given. 50. Where a cheque is issued not for the purpose of discharge of any debt or other liability, the maker of the cheque is not liable for prosecution. For example, if the cheque is given by way of a gift or present and if it is dishonoured by the Bank, the maker of the cheque is not liable for prosecution. In A. Bhogi Raju. For example, if the cheque is given by way of a gift or present and if it is dishonoured by the Bank, the maker of the cheque is not liable for prosecution. In A. Bhogi Raju. v. S.G. Ramayya, 1994(1) An WR 73 four cheques issued by the accused were returned unpaid and the trial Court acquitted the accused taking the view that the cheques were not issued for the discharge of any legally enforceable debt or other liability. A learned single Judge of this Court after reviewing the evidence, came to the conclusion that "an independent assessment of the evidence adduced by the complainant, both oral and documentary, leads me to an irresistible conclusion that the cheques were issued by the accused in connection with the film distribution business as alleged by the complainant but not in connection with some other transaction as contended by the accused." After recording this finding, the learned Judge made a further observation: "Even otherwise, he should not have issued the cheques without sufficient funds in the Bank to his credit." These observations clearly imply that in every case where a cheque was issued without sufficient funds in the Bank, the maker is liable for an offence under Section 138. Unless the two conditions set out in Section 138 are satisfied, no criminal liability can be fastened, The aforesaid observations, therefore, are clearly unsustainable and so to that limited extent we overrule the same. 51. Section 138 is not couched in precise language. Apart from being vague, it is likely to be misinterpreted in a manner different from what was intended by the law making body, and this is because of the words "payment of any amount of money to another person" appearing in the main enacting clause. The words "another person" are not explained. This at the first blush gives an incorrect impression that the words "another person" means only a "payee" and that the sweep of the offence is confined to the drawer and the payee. We, therefore, hold that both the payee and holder in due course are covered by the expression "another person" but not a mere holder or endorsee without consideration. 52. We, therefore, hold that both the payee and holder in due course are covered by the expression "another person" but not a mere holder or endorsee without consideration. 52. The rebuttable presumption under Section 138 operates only in favour of the payee or a holder in due course but not in favour of a person, who, without consideration, became the holder of the cheque." This decision in no manner advances the case of the petitioner 11. In Electronics & Technology Development Corpn. Ltd., Secunderabad v. Indian Technologists & Engineers (Electronics) (P) Ltd. and another [(1996) 2 Supreme Court Cases 739], it was observed that if the drawer before presentation of the cheque, issues notice to the payee not to present the same for encashment, and he still presents, then Section 138 is not attracted if the cheque is returned by the Bank. 12. This is not the situation in the case under consideration. 13. Another decision on which reliance was placed by the learned Counsel for the petitioner is of M/s. Gopi Nath & Sons v. State of Himachal Pradesh and another (1981 Cr.L.J. 175), wherein a learned Judge of this Court has observed that while summonig the accused without investigating contents of complaint, then the order is without jurisdiction and the same is liable to be quashed. 14. A reference to the order dated 10.1.1997 shows that it was passed after due consideration of all the material placed on record. For ready reference, the said order is reproduced hereinbelow:— "10.1.1997 Present:— Complainant with counsel Shri A.S. Shah, Advocate. Record perused, heard. Order Complainant S.S. Randhawa, branch manager of the State Bank of India, Kala Amb has voiced on oath as PW-1 that a cash credit limit was granted to M/s. Wadhawa Pharma Chem Pvt. Ltd, Kala Amb and the entire stock of this firm was hypothecated with the complainant-Bank. Since some material out of the hypothecated stock was purchased by the accused from the said firm, he issued a cheque Ex. PA amounting to Rs. 5,30,700 on April 2, 1996 along with a letter Ex. PB. But the cheque on being presented to the banker concerned was dishonoured and a notice copy of which is Ex. PD was issued to the accused. Since he did not respond to the notice, the complainant came up with the instant complaint. 2. PA amounting to Rs. 5,30,700 on April 2, 1996 along with a letter Ex. PB. But the cheque on being presented to the banker concerned was dishonoured and a notice copy of which is Ex. PD was issued to the accused. Since he did not respond to the notice, the complainant came up with the instant complaint. 2. Deposition of the complainant finds substantial assurance from the documents brought on record including the cheque Ex, PA, copy of letter Ex. PB and copy of notice Ex. PD and I am satisfied that there exists a strong prima facie case against the accused firm director of which is stated to be one Munish Mehra. Let the accused be summoned for 12.3.1997 on filing of PF and list of witnesses within three days. 15. A perusal of the order shows that after considering the evidence of the complainant and documents produced on record, the Court was satisfied that there existed a prima facie case against the petitioner and it was thereafter that the process was issued against him. 16. In Parmod Kumar v. Subodh Kumar (19971) Sim.L.J. 336), it was held that the complaint prima facie must disclose such facts so as to constitute an offence in order to sustain prosecution without satisfying that the notice under Section 138 was received by the accused. In that situation, it was held that the complaint was not maintainable. 17. As already observed as well as in view of the facts detailed in the affidavit of Shri S.S. Randhawa, filed during the course of the proceedings in Criminal Revision Petition No. 89/97} wherein the date of service of the notice has specified and the said fact having not been specifically denied, this Court is prima facie of the opinion for the purpose of dealing with this revision petition that the notice had been served upon the petitioner on 14.8.1996. If it was not so, it will be open for the petitioner to urge the same before the Court below. As and when, such question arises before the trial Court, it shall be disposed of by it without being influenced by any of observations made in this judgment. 18. If it was not so, it will be open for the petitioner to urge the same before the Court below. As and when, such question arises before the trial Court, it shall be disposed of by it without being influenced by any of observations made in this judgment. 18. In the case of Mushtaq Ahmad v. Mohd Babibur Rehman Faizi and others [(1996) Supreme Court Cases 440], the Honble Supreme Court held that the High Court was not justified in quashing the complaint by considering rival versions and entering into debatable areas of deciding which of the version was true, and by following the observation made in the case of State of Haryana and others v. Ch. Bhajan Lai and others, set aside the order of the High Court for quashing the proceedings and directed the Magistrate to proceed with the complaint in accordance with law. It may be appropriate to notice that the observation made in the case of Ch. Bhajan Lai (supra), is to the following effect:— "We also give a notice of caution to the effect that the power of quashing a criminal proceeding would be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice." 19. In the case of Gopal Dehi Ozha v. Sujit Paul (1995 Cr.L.J. 3412), it was held that where the notice of dishonour is given, it needs to be given demanding cheque amount only and when higher amount is demanded than what is mentioned in the cheque, notice is vague and illegal. 20. On the strength of this judgment, it was pointed out that in the notice issued in both the cases, the petitioner was called upon to pay the amount of cheques with interest and compensation. 20. On the strength of this judgment, it was pointed out that in the notice issued in both the cases, the petitioner was called upon to pay the amount of cheques with interest and compensation. This argument is not open to the petitioner as his case is pure and simple that since the drawer of the cheques had agreed to return those to the .petitioner in both the cases after those were returned by its banker to whom those had been regotiated, as such, no benefit can be derived by the petitioner from this judgment. On the question of negotiability of the cheques in question, reference can usefully be made to the Full Bench decision of Calcutta High Court in the case of M/s. Tailors Priya, a firm v. M/s. Gulabchand Dhanraj, a firm (AIR 1963(Vol. 50) 36, wherein it has been observed that a cheque having been crossed "account payees without further endorsement, is a negotiable instrument and may be negotiated. But in the instant case, issuance of the cheques is not indipsute. His whole case is that the cheques had been agreed to be returned by the drawee M/s. Wadhawa Pharmochem Private Limited who had confirmed its liability towards the respondent-Bank. Thus, according to the petitioner, his defence needs to be looked into at this stage and after examining it, both the cases are fit for setting aside the summoning order passed under Section 204 of the Code of Criminal Procedure. This is a debatable question which cannot be gone into by this Court with examining the correspondence placed on the records in this Court. Options are open to the petitioner either to contest the case and then prove his defence or place such material before the Court below on the basis of which the Court may have no option, but to decide the case after the materials produced before it. Section 13 of the Act makes a cheque negotiable instrument and once a negotiable instrument is transferred to any person, it stands negotiated under the law. In the instant case, the respondent-Bank had become the holder in due course after it made 75% payment to M/s. Wadhawa Pharmochem Private Limited. Under Section 118 of the Act, statutory presumption is attached that every negotiable instrument was made or drawn for consideration and the holder of a negotiable instrument is a holder in due course. In the instant case, the respondent-Bank had become the holder in due course after it made 75% payment to M/s. Wadhawa Pharmochem Private Limited. Under Section 118 of the Act, statutory presumption is attached that every negotiable instrument was made or drawn for consideration and the holder of a negotiable instrument is a holder in due course. Similarly, the endorsement of payees account on the cheques in both the cases are generally crossed and in case the petitioner wanted to make the cheques not regotiable, so that it is not possible for anyone to encash those as well as to check the payment as well as to curtail the negotiable character of the cheques, then those were required to have special crossings of "Not Negotiable" as well. 21. On examination of entire material, it cannot be said that on a reading of the complaint as well as the documents produced before the Court below during the course of recording preliminary evidence as well as the statements before issuing process, that the complaint as well as the evidence does not disclose any prima facie case against the petitioner or this is a case of no evidence. Similarly, after perusal of the order dated 10.1.1997, it cannot be said that the process has been issued in a mechanical manner without application of mind by the trial Court. Simply because Section whereunder the petitioner has been ordered to be summoned being not mentioned in the order dated 10.1.1997, would not be enough to hold that it is a case of non-application of mind especially when the order briefly indicates all the ingredients of Section 138 of the Act. 22. For the foregoing reasons, both the revision petitions are dismissed, parties through their learned Counsel are directed to appear before the Court below on 11.1.1998. However, it is clarified that the trial Court would examine the matter without being influenced by any observations made herein this judgment, as and when it is raised before it to question the summoning order, or other legality of the proceedings on any legal ground available to the petitioner. Revision petition dismissed.