1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1733 OF 2008 M/s.Poona Brush Co. & Ors. .. Petitioners Versus M/s.Massive Engineering Pvt. Ltd. & Anr. .. Respondents Mr.R.D.Soni i/by M/s.Ram & Co for the petitioners. Ms.A.T.Jhaveri, A.P.P for the State. Mr.Subhash Hartalkar for the 1st respondent. CORAM : A.S.OKA, J. DATE : 25th June 2009. P.C.: . Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. The petitioners have been arraigned as accused in a private complaint filed by the 1st respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881. The process was issued on the said complaint. The petitioners filed a revision application for challenging the said order which has been rejected by the Sessions Court. 2. The submission of the learned counsel appearing for the petitioner is that process could not have been issued as in the notice which preceded filing of 2 the complaint the cheque number was mentioned as 63535 and the amount of cheque was mentioned as Rs. 7,80,565/- whereas in the complaint filed by the 1st respondent the cheque number has been stated as 663535. The cheque amount has been stated as Rs. 7,80,564/-. He placed reliance on a decision of Andra Pradesh High Court in the case of Yankay Drugs & Pharmaceuticals Ltd Vs. Citi Bank N.A. And Anr. (Vol.106 Company Cases 662. He submitted that the notice of demand which is a condition precedent for filing a complaint was in respect an altogether different cheque and the cheque amount which is demanded by the notice of demand is higher than the actual cheque amount. He, therefore, submitted that process could not have been issued on the said complaint. His second submission is that memorandum of understanding dated 29th September 2006 annexed to this petition has not been denied by the 1st respondent and the said memorandum shows that the cheque on the basis of which complaint was filed was issued by way of security. He placed reliance on the decision of the Apex Court in the case of M.S.Narayanan Menon @ Mani Vs. State of Kerala & Anr in Criminal Appeal No.1012 of 1999 and submitted that a complaint will not lie under section 138 of the Negotiable Instruments Act, 1881 on the basis of a 3 cheque which was admittedly given by way of security. 3. I have considered the submissions. In the legal notice issued prior to the filing of the complaint the cheque number has been mentioned as 63535 and the cheque amount has been mentioned as Rs.7,80,565/-. In the complaint it is specifically stated that in the legal notice cheque No.063535 and the cheque amount have been wrongly printed. It is obvious from the cheque number printed in the notice and cheque number appearing in the complaint that it was an inadvertent mistake. The same is the case with the cheque amount. It is pertinent to note that it is not the case of the petitioners that there was any other cheque issued by the petitioners apart from the cheque which is described in the complaint. Therefore, considering the facts of the case these errors will not vitiate the complaint. It cannot be laid down as absolute proposition of law that merely because in the notice which is a condition precedent filing of the complaint, if incorrect amount and incorrect cheque number is mentioned, cognizance of the complaint filed on the basis of the notice cannot be taken. Therefore, there is no merit in the submission and obviously the decision of the Andra Pradesh High Court cannot be held as a binding precedent. 4 4. As far as the second contention is concerned, the same is based on a memorandum of understanding dated 29th January 2006 allegedly executed by the petitioners and the 1st respondent. The submission of the learned counsel appearing for the petitioners was that by filing a reply the execution of the said memorandum has not been denied. The petitioners are relying upon a document which is not a part of the record of the complaint. In this petition the issue regarding execution of the said document cannot be decided. It is all a matter of evidence. The second ground pleaded by the counsel for the petitioner is nothing but the defence of the petitioner based on documents which are required to be produced and proved at the time of trial. Therefore, the said contention cannot be gone into at this stage and the said contention will have to be kept open to be decided at the appropriate stage of the complaint. 5. Subject to what is observed above, Writ Petition is rejected. It is made clear that the 2nd contention raised by the petitioner is expressly kept open. (A.S.OKA,J)