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Section 138 NI Act- Not Mentioning Date Of Service Of Demand Notice Is Not Fatal To Case: Allahabad High Court

The Allahabad High Court has held that a complaint for dishonour of cheque under Section 138 of the Negotiable Instruments Act, 1881, cannot be dismissed merely because it does not mention the date on which the demand notice was served upon the alleged defaulter/ drawer. “The complaint cannot be thrown at the threshold even if it does not make a specific averment with regard to service of notice on the drawer on a given date. The complaint, however, must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque,” a Single Bench of Justice Vivek Varma ruled. While holding thus, it relied on the Supreme Court’s verdict in CC Alavi Haji v. Palapetty Muhammed & Anr. where it was held that held that absence of averments in the complaint about service of notice upon the accused is the matter of evidence. “When the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the 5 address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect,” the Top Court had held.

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