JUDGMENT Dr. Pratibha Upasani. J. – This criminal application is filed by the petitioners (original accused), being aggrieved by the order of issuance of process by the Additional Chief Metropolitan Magistrate 4th Court at Girgaum Bombay in Case No. 172/S/of 1992 for offences punishable under Section 138 of the Negotiable Instruments Act and Section 420 of the Indian Penal Code. 2. The petitioners are not present nor their advocate is present. Perused the proceedings. There is an ad interim stay of proceedings pending before the lower Court, granted by this Court on 22nd September 1992 and it is obvious that for the last about more than seven years, everything has come to standstill. 3. Heard Mr. Kuldeep Patil for respondent No. 1 and Ms R. Dandekar learned A.P.P. for respondent No. 2. The original complaint is on page No. 9 of the paper-book. The gist of the complaint can be narrated as follows: The complaint is filed by one of the partners of the complainant firm M/s. Seema Industries. The complainant firm carries on business of fabrication and job works as per orders. The present petitioners/accused No. 1 is a Limited Company while accused Nos. 2 and 3 are the Managing Director and Director respectively of the said Company. Accused No. 4 is an Executive/ Accountant of the accused No. 1 Company. Accused Nos. 2, 3 and 4 actually manage, look after and attend to the day-to-day business of the accused No. 1 Company. 4. The complaint dated 23rd July. 1992 further states that accused Nos. 2, 3 and 4 on behalf of accused No. 1 placed order with the complainant for supply of M.S. fabricated steel casing M.S. fabricated zinc tank, M.S. fabricated lead tank. M.S. fabricated casing, etc. by making representation to the complainant firm that the accused would pay price of the goods supplied to them. The complainant firm thereafter delivered at the items as per their specifications against delivery challans. The price and cost of the above said items came to Rs. 4,36,392/ - against various bills. 5. The complainant has further stated in the said complaint that the accused did give part of the amount by various cheques and pay orders and a sum of Rs. 68,891/- remained to be paid and this was the sum, which was due and payable to the complainant firm. 4,36,392/ - against various bills. 5. The complainant has further stated in the said complaint that the accused did give part of the amount by various cheques and pay orders and a sum of Rs. 68,891/- remained to be paid and this was the sum, which was due and payable to the complainant firm. Thereafter the accused gave a cheque dated 13th March 1992, bearing No. 095759 for the said amount i.e. Rs. 68,891/- to the complainant firm as the final payment towards the amount due and payable. The said cheque was signed by accused Nos. 3 and 4 as Director and Executive/ Accountant of the accused No. 1. The said cheque after depositing in the Bank for realisation was, however, dishonoured and returned by the bankers of the accused with remarks payment stopped by drawer". 6. The complainant has further stated that thereafter, immediately the said fact was brought to the notice of the accused and the accused were called upon to pay Rs. 68,891/ - in lieu of cheque No. 095759 dated 13th March, 1991. Thereupon the accused again gave cheque No. 132535 dated 23rd April, 1992 in lieu of the dishonoured cheque No. 095759 for Rs. 68.891/- However the said cheque also was dishonoured and came back with the remarks, "payment stopped by drawer". 7. Thereafter, immediately the complainant firm gave notice of demand dated 10th June, 1992 through their Advocate, demanding payment of the said dues to the firm making it clear in the said notice that in the event of failure of the said due of Rs. 68.891/- within the statutory period of fifteen days from the date of service of the said notice legal proceedings would be taken against the accused. The said notice was duly served upon the accused by Registered Post and under Postal Certificate and the accused received the said notice. However there was no response from the accused. Therefore the complainant firm filed complaint dated 23rd July. 1992 in the Court of the Additional Chief Metropolitan Magistrate's N Court at Giragum. Bombay under section 138 of the Negotiable Instruments Act. Charges of cheating also were made by the complainant firm and it was prayed that process be issued against the accused under Section 138 the Negotiable Instruments Act and Section 420 of the Indian Penal Code. 8. 1992 in the Court of the Additional Chief Metropolitan Magistrate's N Court at Giragum. Bombay under section 138 of the Negotiable Instruments Act. Charges of cheating also were made by the complainant firm and it was prayed that process be issued against the accused under Section 138 the Negotiable Instruments Act and Section 420 of the Indian Penal Code. 8. It appears that process was accordingly issued against the accused on 23rd July, 1992. Being aggrieved by the said order of issuance of process the present criminal application was filed by all the four accused. Ad interim relief staying proceedings in the lower Court was granted by this Court on 22nd September. 1992. Thereafter the proceedings have come to a standstill. 9. After going through the complainant the ingredients of Section 138 of the Negotiable Instruments Act are clearly spelt out. The complainant firm has also scrupulously followed the time schedule- as envisaged by Section 138 of the Negotiable Instruments Act. Therefore process under Section 138 of the Negotiable Instruments Act was rightly issued by the learned. Additional Chief Metropolitan Magistrate. N Court Girgaum. However having considered the narration of the complainant in its complaint in Paras 4 and 5 the ingredients of cheating even at the prima-facie stage are not spelt out. It is evident that the accused out of the total amount of Rs. 4,36,392/- in fact paid almost the entire amount except. Rs. 68.891/-. It does not appear that they had an intention of not making payment right from the beginning when they entered into transaction with the complainant firm. The same however cannot be said as far as offence under Section 138 of the Negotiable Instruments Act is concerned. Hence the petitioner/accused have to face the trial for the said offence. Hence the following order: Criminal Application No. 2689 of 1992 is partly allowed. Order of issuance of process under Section 420 of the Indian Penal Code is quashed and set aside. However order of issuance of process under Section 138 of the Negotiable Instruments Act is maintained. Ad interim relief granted on 22nd Sep. 1992, is hereby vacated. Trial to proceed against all the accused under Section 138 of the Negotiable Instruments Act. All the accused to appear before the lower Court 10th July. 2000. Writ to go down immediately. Application allowed partly.