JUDGMENT : A.P. Bhangale, J. Heard Mr. S.Adukia, Advocate for Respondent Nos. 1 to 3. None for the applicant. 2. The revision applicant has challenged the order dated 30th October, 2010 passed by the Additional Sessions Judge, Nagpur in Criminal Revision Application No. 1180 of 2009 whereby the learned Additional Sessions Judge was pleased to set aside the order of issuance of process which was passed by the learned Judicial Magistrate, First Class at Nagpur. 3. It appears that Summary Criminal Case was instituted for the alleged offence punishable u/s 138 r/w. Section 141 of the Negotiable Instruments Act, 1881. After recording verification, the learned Judicial Magistrate, First Class (Court No. 10), Nagpur, by an order dated 30.7.2009, issued process for the offence punishable u/s 138 of the Negotiable Instruments Act. 4. It appears that complainant Arti d/o. Amar Pande instituted complaint against six persons (accused Nos. 1 to 6 ) on the ground that they were having business of sale and purchase of gold ornaments under the name and style as "Mayura Jewelers" at Boriwali, East Mumbai - 66 and they have approached the complainant at Nagpur on 5th July, 2008 because she wanted to dispose of her golden ornaments which were old. According to the complainant, they had, after accepting golden ornaments, issued separate cheques bearing Sr. Nos. 460721 to 460725, all dated 20th December, 2008 for various amounts totaling to Rs. 19,99,950/-. All those cheques were drawn upon the Dena Bank, Borivali Branch at Mumbai in favour of the complainant. The cheques were issued by the signatory as a proprietor of M/s. Mayura Jewellers. According to complainant, she was acquainted with the accused since last 30 years as they have a reputed firm in Borivali with a high standing reputation. It is contended that accused No. 6 is the firm and all the accused are liable and responsible for the day to day affair of the said firm. Thus, alleging liability for the offences punishable u/s 138 r/w. 141 of the Negotiable Instruments Act for the dishonored cheques, the complainant sought to prosecute accused Nos. 1 to 6 on the ground that the cheques were presented on 20th December, 2008, but were dishonored. 5. The learned Advocate for the Respondents contended that accused No. 6 is described in his individual name as Pravin Champatlal Rathod, aged 45 years, Occupation C.A., resident of IInd, Rajanigandha, Prof. 1 to 6 on the ground that the cheques were presented on 20th December, 2008, but were dishonored. 5. The learned Advocate for the Respondents contended that accused No. 6 is described in his individual name as Pravin Champatlal Rathod, aged 45 years, Occupation C.A., resident of IInd, Rajanigandha, Prof. V.S.Agashe Marg, Dadar (West), Mumbai. The learned Advocate for the Respondents submitted that although the complainant claimed that she is acquainted with the accused since the last 30 years prior to the complaint, address of accused Nos. 1 to 6 was mentioned in the handwriting as also occupation of the complainant was mentioned as 'housewife' in the handwriting (added later). It is submitted that accused No. 6 is mentioned as a firm which is contrary to what is stated in the cause title of the complaint. According to the learned Advocate for the non-applicants, there was No. question of applicability of Section 141 of the Negotiable Instruments Act which relates to the offences by the Companies and in the case of a Company, a person who was at the time of commission of offence was incharge of or was responsible to the Company for the conduct of business of the Company is by statutory fiction -considered guilty for the offence punishable under the Act. In the present case, in the cause title, No. any Company is described. According to the complainant, cheques were issued by Mr. K.M.Mehta as Proprietor for "Mayura Jewelers", which were issued in favour of Ms Arti Tiwai on 20.12.2008 and not in favour of Ms Arti Amar Pande. This fact itself was noteworthy for the learned Magistrate to record a finding that there was No. sufficient ground to issue process against the accused. Furthermore, the cheques were drawn upon the Dena Bank, Borivali (East) Branch, Mumbai. There was No. occasion for any of the accused to visit Nagpur. The bills, which were sought to be relied upon as Annexure B to the application, did not bear any signature for "Mayura Jewelers" and in the said bills, the name of Seller is mentioned as 'Arti Tiwari' with address mentioned as Vora Residency, L.I.C. Colony, Borivali (East), Mumbai-66. Thus, on her own showing, the complainant was resident of Borivali (East), Mumbai. Thus, on her own showing, the complainant was resident of Borivali (East), Mumbai. Under these circumstances, the learned Judicial Magistrate, First Class, Nagpur committed an error of law in passing the order for issuance of process which, in my opinion, was rightly corrected by the learned Additional Sessions Judge in exercise of revisional jurisdiction. 6. Furthermore, according to the learned Advocate for the Non-applicants, the complainant had filed a Criminal Writ Petition along with her father mentioning their address as 701, Leela Residency, Nandpeshwar road, Borivali (West), Mumbai -400 103. Under these circumstances, the complainant had apparently chosen the Court of Judicial Magistrate, First Class, Nagpur with a view to harass the accused who are resident of Mumbai and when the complainant herself was resident of Mumbai, there was No. reason for her to come to Nagpur for presentment and encashment of the cheques allegedly issued by the accused. Under these circumstances, it is submitted that the learned Additional Sessions Judge had rightly set aside the order regarding issuance of process on the ground that there was No. prima-facie case to show that the accused were in-charge of and were responsible for conducting the business of any Company or firm, as alleged. The learned Advocate for the Non-applicants has placed strong reliance upon the ruling in the case of Siva Kumar v. Natarajan reported in 2009 ALL MR 2165 (Cri) (SC). He submitted that the complainant cannot be allowed to blow hot and cold by taking different stand while seeking to prosecute the accused on the pretext of false and fabricated grounds. It appears in para 10 of the ruling in Siva Kumar 's case that the Apex Court, making reference to legal principles mentioned in the case of Harman Electronics (P) Ltd. and Another Vs. National Panasonic India Ltd., observed that the proviso appended to Section 138 of the Negotiable Instruments Act has to be considered. It cannot be disputed that in order to constitute an offence punishable u/s 138 of the Negotiable Instruments Act, there are following elementary requirements: 1. Drawing of the cheque. 2. Presentation of the cheque to the bank. 3. Returning the cheque unpaid by the drawee bank. 4. Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. 5. Failure of the drawer to take payment within fifteen days of the receipt of the notice. 7. Drawing of the cheque. 2. Presentation of the cheque to the bank. 3. Returning the cheque unpaid by the drawee bank. 4. Giving notice in writing to the drawer of the cheque demanding payment of the cheque amount. 5. Failure of the drawer to take payment within fifteen days of the receipt of the notice. 7. Concatenation of all the above acts would constitute the offence. Had the learned Judicial Magistrate, First Class, Nagpur considered this in the light of averments in the complaint, he would not have issued process for want of sufficient grounds to proceed further at Nagpur. 8. The learned Advocate for the Non-applicants also made a reference to the ruling in the case of M/s. Viral Filaments Ltd. v. State of Maharashtra and Anr. reported in 2009 ALL MR (Cri) 3229. This Court specifically observed that the complaint u/s 138 of the Negotiable Instruments Act can be allowed against the drawer of the cheque, who has failed to make payment of the amount of money to the payee or to the holder in due course within 15 days of receipt of demand notice. Obviously, unless it is shown that applicants could be treated as drawer of the cheque in the eye of law, No. criminal action can be instituted against them. Thus, it is submitted by the learned Advocate for the Non-applicants that No. prima facie case was made out by the complainant on the basis of concatenation of all the necessary ingredients of the offence punishable u/s 138 r/w. Section 141 of the Negotiable Instruments Act. Therefore, the process issued by the learned trial Magistrate was unsustainable in the eye of law. Under the circumstances, it is submitted that, the learned Additional Sessions Judge in exercise of revisional jurisdiction u/s 397 of the Code of Criminal Procedure rightly set aside the issuance of process as against the Non-Applicant Nos. 1 to 3 herein. 9. Thus, after perusal of the rulings cited in the light of submissions advanced on behalf of the Non-Applicant Nos. 1 to 3, I must record my agreement with the submissions advanced and dismiss the application because continuance of the criminal proceeding against Non-Applicant Nos. 1 to 3 herein. 9. Thus, after perusal of the rulings cited in the light of submissions advanced on behalf of the Non-Applicant Nos. 1 to 3, I must record my agreement with the submissions advanced and dismiss the application because continuance of the criminal proceeding against Non-Applicant Nos. 1 to 3, in the facts and circumstances of the case, would not only be abuse of process of law, but would also unnecessarily harass them and compel them to face rigors of criminal trial considering that they are resident of Mumbai and cannot frequently visit to Nagpur to stand trial in such summary criminal case in the given circumstances. Therefore, the revision is dismissed.