1. Heard Mr. RL Yadav, learned counsel appearing on behalf of the petitioners and Mr. R De, learned counsel appearing on behalf of the respondents.

2. The present petitioner is a partnership firm having its office and place of business at Haibargaon in the district of Nagaon, Assam. The petitioners No. 2, 3 and 4 are its partners and the said firm applied for loan to the extent of Rs. 2 Crores from the respondent No. 1, ICICI Bank Limited. The petitioners pledged wheat valued at Rs. 2 Crores by the said loan and the respondent No. 1 took 4 (four) blank cheques from the petitioners as security against the said loan. An agreement was executed between the parties to that effect where after the petitioners purchased 2269.34 MT of wheat and stocked in the warehouse at Senchuwa, Nagaon under the lock and key of the respondent No. 1 Bank as the same was pledged goods against the finance of Rs. 1,70,88,659/-. The market price of the wheat nosedived and at that relevant point of time the petitioners received liquidation notice and the Bank informed that on failure to pay the amount they would initiate action against the petitioners. The petitioners prayed for 4 months time to sell the pledged goods. The respondent No. 1 was searching for customer to sell the goods at low rate and as such, the petitioners filed Title Suit No. 47/2007 in the Civil court of Nagaon. Upon an application for interim injunction, the learned trial court granted the injunction restraining the respondent Bank from selling the pledged goods. On an appeal to the Gauhati High Court, a direction was given to the Bank to sell the pledged goods at Nagaon but the same was sold at Guwahati at a much lower price than the amount offered by the present petitioners. Thereafter, the petitioners preferred Title Suit No. 5/2008 in the court of Civil Judge (Sr. Divn.), Nagaon for a direction that the loan amount is not a non-performing asset.

3. On 19.03.2008 during the course of verification of stocks it was found that only 6135 bags of wheat was available in the go down of the respondent Bank out of 44,755 bags of wheat. The weight of each bag was found 40 Kg instead of 50 Kg and as such, the petitioners filed an FIR on 19.03.2008 at Nagaon regarding missing of stock from the custody of the respondent Bank. The petitioners also filed Money Suit No. 2/2008 claiming compensation. In the mean while, the respondent No. 1 filed a complaint case being No. 16649/2009 in the court Metropolitan Magistrate, 12th Court at Kolkata and the learned Magistrate issued summons to the petitioners to appear on 31.08.2009. Thereafter, the petitioner preferred this writ petition for the following reliefs:-

“It is, therefore, prayed that your lordship may be pleased to issue a Rule, calling upon the respondents to show cause as to why the complaint case No. 16649/09 U/s 138 of N.I. Act, pending in the court of the Metropolitan Magistrate, 12th Court, Calcutta and the process issued on the basis of the said complainant case and summons issued U/s 68 of the Code of Criminal Procedure for appearance before the Metropolitan Magistrate, 12th Court, Calcutta on 31.08.2009 or on any other date shall not be quashed and after hearing the causes that may be shown, the Rule may be made absolute and any other Order/Orders as your Lordship may deem fit and proper may also be passed and alternatively why the respondents shall not be directed to take back the complaint petition filed before the Metropolitan Magistrate, 12th Court, Calcutta and/ or why the learned Metropolitan Magistrate, 12th Court, Calcutta shall not be directed to recall the process issued against the petitioners and to return the complaint petition to the respondents to file in the proper court of law having jurisdiction to entertain the complainant if permissible under the law.

Further, it is prayed that pending disposal of the rule the entire proceeding of complaint case No. 16649/09 U/s 138 of N.I. Act pending in the Court of