( 1 ) THE applicant, who is the chairman/chief Managing Director of M/s eastern Sugar and Industries Ltd. Mptihari (Bihar), has prayed for. quashing of complaint case number 437 of 2003, Ajai bathwal v. Blmal Kumar Nopani and others, under section 138 of Negotiable Instru-ments Act 1881, hereinafter referred to as the Act, pending before Civil Judge (Jr. Div.), court No. 20, Gorakhpur against him, through this application. He has also prayed for stay of further proceeding of the aforesaid case pendente lite.

( 2 ) ON 29-4-03 the complainant Ajai kumar Bathwal, respondent No. 2 filed a complaint in the court of Judicial Magistrate, gorakhpur being complaint case number 437 of 2003, with the allegations that he is a resident of Betia Hata Police Station Cantt, district Gorakhpur and is the proprietor of m/s. Shyam Traders, Keshav Market, golghar, Gorakhpur. Under business transactions he used to supply electrical goods, building materials, paints and other general goods to Eastern Sugar and Industries Ltd. through his said firm, and since last five years, he had supplied goods worth Rs. 75 lacs (Rs. 75000. 00 out of which Rs. 15 lacs (Rs. Fifteen Lacs} were due on the said Sugar mill. Repeated demands of debted amount resulted in issuance ofcheque No. 3218117 on 12-3-2003 of an amount of Rs, 1,35,0000. 00 (Rs. Thirteen lacs fifty thousand only) with the assurances by the owner and officers of the mill that the rest of the money will be paid later on. The complainant deposited the said cheque in his bank Punjab and Sindh bank, Golghar, Gorakhpur but it bounced on 28-3-2003, because of insufficient funds in the account of the cheque with the endorsement "exceeds arrangement". The complainant gave,a notice through S. N. Sinha, Advocate to all the accused on 30-3-2003 but they, in spite of receiving the said notice were not ready to pay the amount of cheque and had no intention to pay the same. They were threatening the complainant on phone to return the cheque and to desist from filing a case otherwise bear the consequences regarding which the complainant informed Senior Superintendent of police, Gorakhpur on 25-4-2003. In support of his complaint the complainant filed the copy of the notice dated 30-3-03 given to the accused through. S. N. Sinha, Advocate. The trial court, summoned the applicant vide its order dated 6-7-2004. As the applicant did not appear consequently warrant was issued against him. The review application of applicant dated 20-12-2005 filed by his counsel for withdrawal of summoning order and warrant was rejected by the trial court on 20-12-2005. Hence this applica-tion under section 482 for quashing of the proceeding.

( 3 ) I have heard the counsel for the applicant, sri S. P. K. Tripathi, advocate on behalf of complainant respondent No. 2 and the learned AGA and have perused the application and affidavit appended therewith.

( 4 ) THE counsel for the applicant submitted that the applicant is the chairman of the company and is residing at Kolkata and has no concern with day to day affairs of the sugar factory which is situated in Motihari (Bihar ). He further contended that the cheque was not signed by the applicant. He further submitted that the cheque was not dishonoured because of insufficiency of funds but was dishonoured because of "exceeds arrangement" and hence section 138 of the Act is not attracted in the case. He further contended that section 141 of the act does not apply in the case and since the company has not been made an accused therefore the prosecution of the applicant alone is not maintainable. He further submitted that the cheque relates to a cheque book which was lost and therefore also no offence is made out against the accused and his prosecution deserves to be quashed.

( 5 ) COUNSEL for the respondent and the learned AGA oh the other hand submitted that the applicant is the Chief Managing director and hence is liable under the Act. The conduct of business Of the company was done with his

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