APPLN.433-10 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 433 OF 2010 M/s. Dhanlaxmi Sales Corporation ...Applicant Vs. M/s. Liberty Oil Mills & Anr. ...Respondents *** Mr. Devendranath S. Joshi, for the Applicant. Mr. P. S. Hingorani, APP, for the Respondent-State. *** CORAM: V. M. KANADE J. DATE : AUGUST 23, 2010 P.C. 1. The applicants are challenging the order of issuance of process by the learned Magistrate on a complaint filed by the respondent under S. 138 of the Negotiable Instruments Act. It is submitted that the cheque in question was issued by the applicants as a security. This is evident from the averments made in the complaint and from the delivery order issued by the complainant. The learned counsel for the applicant invited my attention to paragraph 4 and 5 of the complaint and also the APPLN.433-10 - 2 - delivery order. It is submitted that from the said averments it was evident that the said cheque was given prior to the delivery of the goods and therefore, it could not be treated as a cheque even towards the existing liability. It is not possible to accept this submission. At this stage, it will not be possible to look into the documents produced by the parties for the purpose of deciding this question. The trial Court shall decide this issue after both the parties lead evidence on merits and in accordance with law. 2. In paragraph 4 of the complaint, there is a clear averment that the petitioners had agreed to pay a sum of Rs.6,92,352/- towards non performance of the contract by the accused and that cheque bearing No. 193419 dated 19-11-2008 was issued in favour of the complainant to decide their liability. In view of these averments, there is no substance in the submission made on behalf of the applicants. This issue therefore, will have to be decided at the final hearing of the case. The trial Court shall decide the case on merits and in accordance with law. . The criminal application is disposed of in above terms. [ V. M. KANADE J.]