TMI Blog2011 (2) TMI 1593X X X X Extracts X X X X X X X X Extracts X X X X ..... s. He is doing business since long by establishing its firm. During the business transaction, petitioner and the opposite party-company entered into an agreement with the terms that the opposite party-company will supply the goods to the petitioner on credit with security of Bank cheque without giving date and amount and payment of cost of goods will be paid by installments basis after its sale in the market. Accordingly opposite party-company supplied the goods to the petitioner since January, 2003 from its plant at Januganj, Balasore, Orissa by issuing invoices and bills and payment was made time to time by draft and cheque and also cash to the authorized representative of the opposite party No. 2 till 31st December, 2003. It is stated that during the transaction between the petitioner and the opposite party No. 2, payment has been made through Bank drafts, cheques against cost of the goods supplied to the petitioner. Opposite party No. 2 has also issued acknowledgment of acceptance of cheques and drafts and also cash from time to time. When the petitioner hard pressed to supply the reconciliation statement for finalization of accounts, the opposite party No. 2 intimated the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner is liable to be punished under Section 138 of the Negotiable Instruments Act, 1881. It is the case of the petitioner that he never received any notice and letter from the said opposite party No. 1 indicating that M/s. Wim Plast Ltd. which presently functioning at Daman but not at Balasore and he has never made any business transaction with opposite party No. 1 nor has ever presented the cheque to the said opposite party No. 1. He had given the cheque without date and amount as the security as per the contract with opposite party No. 2, which is still functioning at Januganj, Balasore. Hence, it is submitted that the complaint petition filed by opposite party No. 1 under Section 138 of Negotiable Instruments Act, 1881 at Daman by utilizing the cheque is not maintainable in the eye of law. It is further stated that the opposite party No. 2 while dealing with the petitioner has clearly indicated that whatever differences will be made between them such differences will be dealt at Balasore. 3. On the basis of the complaint lodged by opposite party No. 1, learned Chief Judicial Magistrate First Class, Daman has taken cognizance under Section 138 of the N.I. Act, 1881 against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint petition filed against the petitioner at Daman cannot be maintained. 8. The second ground urged is that the cheque which is issued was drawn at Bhubaneswar. The cause of action which has taken place at Bhubaneswar. Further he has also drawn our attention to the documents which have been produced in the writ petition namely, Annexure-1 series along with the counter affidavit, stating that in the invoice-cum-challan, the jurisdiction of the Court as mentioned at Sl. No. 4 subject to the Balasore Jurisdiction. Therefore, even assuming that the cheque was issued in the name of the payee and if it is dishonoured, the jurisdiction for institution of any complaint petition is either at Balasore or at Bhubaneswar. Therefore, the institution of the said complaint petition on the basis of dishonoured cheque at Daman against the petitioner by the opposite party for the reason that it has got Manufacturing Company at Uttaranchal could not have been invoked as no cause of action arose there. Therefore, complaint petition filed at Daman is not maintainable in law and this Court has the jurisdiction to examine the legality of the summons issued against the petitioner in view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another, reported in (1999) 7 SCC 510. He has also placed reliance upon the decision of the Supreme Court in the case of C.C. Alavi Haji v. Palapetty Muhammad and another, reported in (2007) 38 OCR (SC) 58 : 2007 (II) OLR (SC) 384. He has also placed reliance upon the decision of the Supreme Court in the case of Shankar Finance and Investments v. State of Andhra Pradesh and others, reported in (2008) 8 SCC 536 in support of his contention that the Power of Attorney Holder is competent to file complaint petition on behalf of the Payee-opposite party No. 2. Therefore, the contention urged by the learned Senior Counsel appearing for the petitioner that the complaint petition is not maintainable and is wholly unsustainable in the eye of law cannot be accepted, rather, the learned counsel on behalf of the opposite parties urged that, this writ petition is not maintainable. In support of the said contention, he has also placed reliance upon the decision of the Supreme Court in the case of M/s. M.M.T.C. Ltd., and another v. Medical Chemicals and Pharma (P) Ltd. Anr., reported in AIR 2002 S.C. 182, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the earlier portion of the narration of facts. It is seriously disputed by the petitioner that the correct address was not given and therefore the notice was returned unserved with a postal endorsement stating that the addressee was always found absent . Reliance has been placed by Mr. Mishra on the said endorsement contending that it is a deemed service upon the petitioner, is the decision of the Supreme Court referred to above which is noted in the narration of facts of this judgment and it is further submitted that the said endorsement is a deemed service or not is a question of fact which is required to be gone into by the Magistrate at the time of trial. Therefore, it is not possible for this Court to record a finding on this question. This submission is wholly untenable in law and cannot be accepted at all for the reason that notice must be served upon the addressee is the mandatory requirement to constitute an offence under Section 138 of the N.I. Act. Merely because of an endorsement on the unserved cover containing the noting that the addressee was absent and the notice was returned unserved cannot be a ground to constitute that there is a deemed service of notice upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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