whether the MM, while entertaining a complaint under Section 138 NI Act, at the pre-summoning stage, can insist upon the complainant producing some

whether the learned MM, while entertaining a complaint under Section 138 NI Act, at the pre-summoning stage, can insist upon the complainant producing some proof of despatch of the notice in terms of NI Act sent to the drawer of the dishonoured cheque

Crl.Rev.P. No. 296/2009

IN THE HIGH COURT OF DELHI AT NEW DELHI

Crl REV P No. 296/2009

HDFC BANK LIMITED Versus AMIT KUMAR SINGH

To recapitulate, a complainant in a case under Section 138 NI Act has
at the pre-summoning stage to satisfy the learned MM that the legal notice in terms of the Section 138 (b) NI Act was in fact “served” on the drawer of the dishonored cheque. If some proof of delivery, or an internet generated or postal delivery report or a signed acknowledgement due card of the drawer, or the unserved cover with the postal endorsement is produced before the learned MM, it will be in the discretion of the learned MM to form an opinion if a presumption of service should be drawn. If the complainant chooses to file an affidavit, the deponent should state that he either went personally and found that the accused was residing at the address or is able to produce some postal certificate or an endorsement by a courier service agency that the accused is in fact residing at the address and yet refusing to accept the notice. If the affidavit merely states that the accused is residing at the address without giving any further documentary proof in support thereof such an affidavit cannot be accepted as satisfying the requirement of Section 138 (b) read with Section 138 (c) of the NI Act 31. For the aforementioned reasons, it is held that no error was committed by the learned MM in rejecting the complaint in the instant case.