Citation: Sainaba v. State of Kerala & Anr. 2026 INSC 1069
Once a Section 138 demand notice is sent by registered post to the drawer’s correct address, the requirement of “giving notice” is satisfied and service is presumed under Section 27 of the General Clauses Act and Section 114 of the Evidence Act, even if a family member receives it. The drawer must rebut this by proving that the address was wrong, that he was unaware of the notice reaching his address, or that the postal endorsement was incorrect. The complainant is not required to prove that the accused personally received the notice or knew of it. M.D. Thomas v. P.S. Jaleel is per incuriam and not binding.
The Supreme Court has held that a cheque bounce notice sent by registered post to the drawer’s correct address is validly served even if a family member receives it, and has declared its own earlier ruling in M.D. Thomas v. P.S. Jaleel (2009) to be per incuriam, meaning wrongly decided without noticing binding precedent. A complainant, Sainaba, said the accused had borrowed Rs 3 lakh and given a cheque that bounced. Her demand notice went by registered post to his correct address but was received by his mother. He neither paid nor replied. The trial court convicted him under Section 138 of the NI Act and sentenced him to six months’ imprisonment and a Rs 3 lakh fine. The sessions court upheld this, but the Kerala High Court set the conviction aside because the notice had been served on his mother and not on him personally. Justices Ahsanuddin Amanullah and Manmohan reversed the High Court. They relied on the settled law in K. Bhaskaran, D. Vinod Shivappa and the three-judge bench in C.C. Alavi Haji that service is presumed once the notice is sent to the correct address, and it is then for the drawer to rebut this. The High Court had wrongly shifted the burden to the complainant to show that the accused knew of the notice. The court found M.D. Thomas, which had acquitted a drawer because the notice went to his wife, to be per incuriam, because it ignored the larger bench’s ruling and did not check whether the wife lived with the drawer or whether the address was correct. The court also said it would be absurd to give the complainant the presumption when a notice is never delivered but deny it when a family member actually receives it. Here, the accused used the same address in his vakalatnama, appeal and revision, never disputed it in his Section 313 statement, and did not claim he lived separately from his mother. The conviction and sentence were restored.