- (1.) HEARD learned counsel for the applicant and learned AGA and have been taken through the record.
(2.) BY means of the instant application, the applicant has invoked inherent jurisdiction of this Court under section 482, Cr. P. C. with a prayer to quash the entire proceedings and the summoning order dated 29.5.2013 passed by the learned Additional Chief Judicial Magistrate (VII) Kanpur Nagar in Complaint Case No. 711 of 2013 (Yogesh Agarwal v. Mohd. Asif ) whereby the learned Magistrate has summoned the applicant to face trial for the offence punishable under section 138 Negotiable Instruments Act, Police Station Gwaltoli, District Kanpur Nagar.
(3.) THE emergence of the facts in a short conspectus is that the applicant is proprietor of the firm which is in the name and style of M/s. Sara Mobile Shoppe, situate at 17/23/3, Tashkand Marg, Civil Lines, Allahabad, which shall in brevity be referred to hereinafter as the Firm. The said firm is duly registered under the Department of Commercial Taxes, Government of Uttar Pradesh under sub -rules (8) and (10) of Rule 32 of the UPVAT Rules 2008, having its tax payer's identification number (TIN) 099133024275. The applicant's firm is running the trade of wholesaler and the retailer of Cell Phone, its accessories, Computer System and peripherals, Digital, Still Image and Video Cameras, Line Telephone Sets and other apparatus for the transmission or reception of voice, images and other data. The opposite party No. 2 (complainant) who is running the firm in the name and style of A.C.P. Distributor with respect to distribution of Computers and its accessories and other associated electronic items to the retailers entered into agreement with the applicant in the year 2011 to supply Laptop of Acer and Lenovo Brand to the firm of the applicant. The mode of payment against the articles supplied by the opposite party No. 2 was through Cash, Cheque, Real Time Gross Settlement or Account Transfer. The cheque and cash was collected by the opposite party No. 2 on the basis of articles demanded by the applicant. The applicant and the opposite party No. 2 adhered to their terms and conditions from July 2011 to July 2012 and the business flourished to the maximum extent. From the month of August 2012, the business of the applicant's firm slowed down gradually thus the opposite party No. 2 stopped to transmit further supply of laptop, computer and other articles. In the intervening period, the employee of the opposite party No. 2 namely Rajneesh who used to collect cash and cheque from the firm of the applicant took one Blackberry Mobile, computer, mobile accessories worth Rs. 20,634/ -on credit of which payment was neither made by the opposite party No. 2 nor his employee Rajneesh. During the course of checking of credit and debit of business transaction, a sum of Rs. 43,330/ - was showing as outstanding out of which Rs. 3,000/ - was deducted as incentive towards the scheme of the company. The opposite party No. 2 demanded the payment of Rs. 40,330/ - from the applicant. The applicant issued an undated cheque of Bank of Baroda Branch Katra Allahabad being cheque No. 035533 for a sum of Rs. 40,330/ - in August, 2012. It was requested by the applicant that the said cheque may not be deposited in the bank for encashment. The applicant will pay the amount in cash. It is submitted by the learned counsel for the applicant that the opposite party No. 2 filed the compliant dated 6.3.2013, under Section 138 of N. I. Act, wholly on incorrect facts that the applicant had also purchased a Lenova with supporting system of which invoice No. T 44/12 -13 dated 13.4.2012 was issued. The cost of which was around Rs. 48,400/ - and the applicant agreed to pay the said amount through cheque. In respect to which the applicant had given a cheque to the tune of Rs. 40,330/ -dated 29.11.2012 being the cheque No. 035533 of Bank of Baroda Katra Branch. When the opposite party No. 2 presented the aforesaid cheque in Punjab National Bank, Mall Road, the said cheque was bounced. When this fact was brought in the notice of the applicant, the applicant assured to deposit the said cheque in the month of January 2013. When the said cheque was presented in January 2013, the same was returned with endorsement that the opening balance is insufficient. The opposite party No. 2 felt highly annoyed and disturbed on account of deceitful act of the applicant, thus he sent a legal notice to the applicant through counsel by registered post on 23.1.2013 which was received by the applicant on 27.1.2013 but the applicant neither gave any reply to the opposite party No. 2 in response to the notice nor paid the due amount rather the applicant extended threats to the opposite party No. 2 to face dire consequences.;