HDFC BANK LTD Vs. AMIT KUMAR SINGH

JUDGEMENT

(1.) THIS petition is directed against the order dated 21st March, 2009 passed by the learned Metropolitan magistrate ('mm') dismissing CC No. 4167 of 2009 titled HDFC Bank Limited v. sumit Kumar Singh, under Section 138 of the Negotiable Instruments Act 1881 ('ni Act' ).

(2.) THE short question that arises for consideration is whether the learned MM while entertaining a complaint under Section 138 ni Act, at the presummoning 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.

(3.) THE aforementioned complaint was filed in respect of dishonour of a cheque no. 763884 drawn on Punjab and Sind Bank, jangpura Extension, New Delhi dated 5. 12. 2008 for Rs. 19,083 drawn by the Respondent in favour of the petitioner HDFC bank Limited ('bank' ). The cheque when presented for payment was dishonoured with the remarks "funds insufficient". It was stated in the complaint filed by the bank under Section 138 NI Act that upon receipt of intimation from the Bank to which the cheque was presented that it was dishonoured, a legal notice "was sent to the drawer at the address available in the records that the said notice was sent/posted to the accused on 14. 1. 2009, by registered a/d post at his above-stated address as the same was duly provided time and again". The cover was not received back. It was claimed that "thus the said notice has been duly served upon the accused. But in spite of the service of the said notice on the accused as aforesaid, the accused intentionally failed to show the positive response and also failed to make the payment of the aforesaid dishonoured cheques to the complainant within the stipulated time".