R K DIXIT Vs. STATE OF U P

JUDGEMENT

(1.) Applicant R.K. Dixit, Manager Allahabad Bank/Field Officer, Allahabad Bank Branch, P.S. Civil Lines, District Moradabad has approached this court u/s 482 Cr.P.C., through instant Application, praying for quashing of his summoning order dated 1.6.2007 u/s 138 N.I.Act, (herein after referred to as the Act) passed by C.J.M. Saharanpur in Complaint Case No. 2713 of 2007, Mohd. Faisal Vs. Smt. Upama and other. Ancillary prayer is for stay of trial court's proceedings against the applicant penente lite this Application in this court.

(2.) Stated briefly, back ground facts, as are decipherable from the pleadings made in the instant Application and annexures, including copy of complaint filed by complainant respondent no. 2 (Annexure no.2), appended herewith, indicate that Mohd. Faisal, complainant Respondent No. 2, lodged complaint case no. 2713 of 2007 on 16.04.2007 in the court of C.J.M. Saharanpur, with the allegations that he(complainant) is the owner of a wood carving Firm M/s. Faisal Wood Carving Industries, district Saharanpur. Two non applicant accused Smt. Upama and Sumeet alias Isant Raghav, mother and son, are the owners of an exporter Firm M/s. Brass Manufacturing Company, District Moradabad and third non applicant accused Rajiv Tyagi is it's Manager. Said Firm collects orders for supply of wood carving materials and after purchasing it from various manufacturers, exports them to their customers. Applicant R.K. Dixit is stated to be the Manager of Allahabad Bank in District Moradabad and it's bank advances loan to the said export Firm and fixes it's credit limit.

(3.) All the four accused came to the complainant's Firm on 08.11.2003, and introduced them as mentioned above and placed orders for supply of wood carving materials for export. Respondent no. 2 fell in their trap and booked their orders, being orders no. 312-365 in November 2003 and supplied them wood carvings worth Rs. 4,57,765/-. Accused remitted Rs. 5,05,000/- through cheque to the complainant which included sale prices of the supplied goods plus Rs.72,095/- surplus amount. For the second time accused approached the complainant in April 2004, and placed order no. 392 and then again in May 2004 placed order no. 412, and, on the basis of these orders, complainant supplied wood carving goods worth Rs. 15,05,090/- through bill nos. 185 to 190 and 196.For these supplies accused made only partial payment of Rs. 7,00,000/- through an account payee cheque keeping Rs. 7,56,850/- as residue balance amount. The complainant, even though had an attack of paralysis and was lying in a serious condition, made repeated demands for payment of balance amount on phone but his requests went unheeded. Without clearing outstanding payment accused placed further order No. 9 for 600 pieces on 11.5.2006 and further oral order of 1004 pieces of wood carving goods. Before finalising theses orders complainant intimated them that they had not paid earlier balance amount and without receiving that payment, complainant will not supply material, then the accused assured him that they will make entire payment with the newly placed orders and, in case, fresh placed orders are not supplied they will not reimburse the due balance amount. Complainant respondent no.2 honoured fresh order and supplied 6978 pieces of wooden bowls through bill Nos. 5,6,7,9,10 and 11 to the accused. However, accused returned 1540 bowl pieces to the complainant but retained rest of 5,438 pieces. At the rate of Rs. 100/- per piece supplied bowls costed Rs. 5,43,800/-. Accused deducted Rs. 1,30,200/-, price of returned bowls. It is mentioned in the complaint that Rs. 7,57,850/- balance amount for the year 2004 and Rs. 5,43,800/-for the year 2006, totalling to Rs. 1,30200/- were deducted from the goods price for the year 2004 and resultantly a balance amount of Rs. 11,70,450/- was due on the accused and inspite of repeated demands the same was not being paid to the complainant. On 25.2.2007 accused came to complainant's Firm to place further orders but when balance payment was demanded before fresh supply is made then the accused gave a cheque of Rs. 8,00,000/- of Allahabad Bank, Moradabad being Cheque No. B.A./30931124 from account No. C.D. 378 dated 26.2.2007 from the cheque book belonging to the Firm M/s Brass Touch Company, the drawee being Firm M/s Faisal Wood Carving Industry. Said cheque was signed by Smt. Upama. Regarding residue amount Rs. 3,70,450/-, the accused assured complainant that the same will be sent to the complainant from Moradabad. It is further alleged that applicant assured the complainant that he is the Bank Manager and as soon as the cheque is deposited for encashment, it will be honoured and he further assured that in case of dishonour of cheque he will get the credit limit of the Firm fixed and get the cheque honoured.