KAIL LIMITED, PREVIOUSLY KNOWN AS KITCHEN APPLIANCES INDIA LTD., REGISTERED OFFICE C Vs. MR. JAMEL AKHTAR, S/O ABDUL AZIZ, PROPRIETOR OF M/S. NEW ALPHA ELECTRONICS, CENTRAL BANK BUILDING, GROUND FLOOR, GYALSHING, WEST SIKKIM, RESIDENT OF HOUSE NO.59, VILLAGE AND STREET GYALSHING, P.S. GYALSHING, DISTRICT WEST SIKKIM

JUDGEMENT

(1.) Assailing the Order of the Learned Judicial Magistrate (West), Sikkim at Gyalshing, in Private Complaint Case No.1 of 2015 dated 20-04-2015, in which the Learned Trial Court discharged the Respondent No.1 under Sec. 138 of The Negotiable Instruments Act, 1881 (in short 'the Act of 1881'), the instant Appeal has been preferred.

(2.) The Appellant's case briefly stated is that, it is a Public Limited Company incorporated under the Companies Act, 1956, under the name and style 'Kail Limited', on a Certificate issued by the Deputy Registrar of Companies, Mumbai on 21-01-2008. Formerly it was known as 'Kitchen Appliances India Limited' but the change in name does not preclude it from initiating and continuing legal proceedings in its new name. The Company is engaged in the sale and purchase of electronic items, such as, colour TV, VCD, DVD through its Branch Offices, which include Asansol, Siliguri and other places. The Respondent No.1/Accused is the Proprietor of a Firm known as 'M/s. New Alpha Electronics' also doing business in electronic products and is run by the Respondent No.1. The Respondent No.1 entered into a Dealership Agreement with the Appellant Company and also opened a Credit Account with the Lucknow Branch of the Appellant Company, in the name of its Firm and obtained various electronic items from time to time on credit from the Appellant Company. Consequently, a sum of Rs. 5,54,037.00 (Rupees five lakhs fifty four thousand and thirty seven) only, was due and payable by the Respondent No.1 to the Appellant Company, for which he issued a Cheque bearing No.359607 dated 16-12-2010 for a sum of Rs. 5,54,037.00 (Rupees five lakhs fifty four thousand and thirty seven) only, drawn on the State Bank of India, Pelling Branch in favour of 'Kitchen Appliances India Ltd.' as payment. The said Cheque was duly signed by the Respondent No.1 as the Proprietor of his Firm. The Appellant Company deposited the said cheque on 12-01-2011 for realisation before its Banker HDFC Bank Limited, Aurangabad Branch, but was dishonoured with the remark 'insufficient funds' vide Memo dated 09-02-2011, information of which was given by the bank and received by the Appellant on 23-02-2011. The Appellant then issued a legal Notice dated 18-03-2011 to the Respondent No.1 calling upon him to pay the amount of the dishonoured Cheque as per the statutory period of fifteen days, from the date of service of Notice on him. The Notice was sent through Registered AD at the usual place of business of the Respondent No.1, but was returned with the remarks addressee out of station hence rtd to sender . That, the Notice is deemed to have been served.

(3.) The Appellant duly appointed Mr. Manoj Bhattacharyya on 15-01-2013 as its Constituted Attorney and authorised him to file, defend and depose on behalf of the Company being conversant with the transactions of the various debtors and dealers of the Company. It was also averred that earlier the matter was filed before the Court of the 9th Judicial Magistrate, First Class, Aurangabad, who vide his Order dated 16- 12-2014 relying on the Judgment of Dashrath Roopsing Rathod Vs. State of Maharashtra and Another (2014) 9 SCC 129 held that the territorial jurisdiction of the case did not vest in his Court, the Cheque being dishonoured in Pelling Branch, hence, the Complaint before the Court of the Learned Judicial Magistrate, West Sikkim at Gyalshing. In view of all of the above, the Respondent No.1 has committed an offence under Sec. 138 of the Act of 1881.