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Supreme Court: Cheque-bounce notice sent to the right address is valid even if a relative takes it; M.D. Thomas per incuriam
- Court
- Supreme Court of India
- Date of judgment
- 30 September 2026
- Case
- Crl.A. No. 4640/2026
- Parties
- Sainaba Vs State Of Kerala
- Outcome
- Allowed
Summary
The Supreme Court on 30 September 2026 held that a statutory demand notice under Section 138 of the Negotiable Instruments Act, 1881 is validly given once it is dispatched by registered post to the drawer's correct address, even if a family member receives it. A bench of Justices Ahsanuddin Amanullah and Manmohan (judgment by Justice Manmohan) set aside a Kerala High Court order that had acquitted an accused on the ground that the notice was received by his mother, and restored his conviction. In doing so, the Court held that its own earlier decision in M.D. Thomas v. P.S. Jaleel (2009) 14 SCC 398, which had set aside a conviction because the notice went to the drawer's wife, was per incuriam and not binding under Article 141 of the Constitution.
The appellant, Sainaba, alleged that the second respondent had borrowed Rs 3,00,000 from her and issued a cheque (No. 479097) on the Catholic Syrian Bank, Perumbavoor Branch, which was dishonoured. She sent a statutory demand notice dated 31 August 2016 by registered post to his correct address, where it was received by his mother. He neither paid nor replied, and she filed a complaint (S.T. Case No. 114 of 2017). In his statement under Section 313 of the Code of Criminal Procedure he said that he had borrowed Rs 7,00,000 in all and repaid it, and that he had given a blank signed cheque when he borrowed Rs 3,00,000.
The Trial Court convicted him on 10 July 2019 and sentenced him to six months' simple imprisonment and a fine of Rs 3,00,000, with a default term of further imprisonment. His appeal was dismissed by the Additional District and Sessions Judge on 16 February 2023. The Kerala High Court, in a revision (Crl. R.P. No. 865 of 2023) decided on 29 July 2025, set aside the concurrent findings, holding that unless there was evidence that the accused was aware of the notice received by his mother, service could not be concluded. The complainant appealed. Despite service of notice on him on 11 December 2025, the second respondent did not appear, and the State of Kerala said it was not a contesting respondent.
The question before the court
- Is the requirement of 'giving' notice under proviso (b) to Section 138 satisfied when a correctly addressed registered notice is received by the drawer's mother, not by the drawer?
- Who must rebut the presumption of service, and was M.D. Thomas v. P.S. Jaleel rightly decided?
What each side argued
- The appellant argued that dispatch of a notice by registered post to the correct address of the drawer raises a presumption of due service under Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1872, relying on C.C. Alavi Haji v. Palapetty Muhammed, D. Vinod Shivappa v. Nanda Belliappa, Madan & Co. v. Wazir Jaivir Chand and Subodh S. Salaskar v. Jayprakash M. Shah. She said the notice was received by the mother who lived with the accused, and that he never challenged the correctness of the address and appeared on summons served at the same address.
- She also argued that the High Court's approach would give an unscrupulous drawer an easy escape by having notices received by family members, and that the High Court exceeded its revisional jurisdiction under Section 397 of the Code of Criminal Procedure by re-appreciating evidence and replacing the concurrent findings of the two courts below.
The court's decision
The Court reviewed the settled law. In K. Bhaskaran v. Sankaran Vaidhyan Balan it was held that 'giving' of notice differs from 'receiving' it, and that a notice sent by registered post to the correct address can be deemed served unless the sendee proves it was not served and that he was not responsible for that. D. Vinod Shivappa approved that view, and a three-Judge Bench in C.C. Alavi Haji held that, once a notice is sent by registered post with the drawer correctly addressed, the requirement under clause (b) of the proviso stands complied with. It then falls on the drawer to rebut the presumption by showing that he had no knowledge of the notice having been brought to his address, that the address was incorrect, that the letter was never tendered, or that the postman's report was wrong. The Court said there is no material difference between Section 27 of the General Clauses Act and Section 114 of the Evidence Act on this point.
It then turned to M.D. Thomas v. P.S. Jaleel, where a Division Bench had set aside a conviction solely because the notice was served on the drawer's wife. The Court held that M.D. Thomas was rendered without noticing the binding three-Judge decision in C.C. Alavi Haji, without examining whether the notice was correctly addressed or whether the wife lived with the drawer, and by treating the wife as equivalent to an unrelated third party. It would also lead to an anomaly: a complainant whose notice was not delivered at all would enjoy the presumption, but one whose notice was actually delivered and received by a family member at the same address would be denied it. Citing State of U.P. v. Synthetics and Chemicals Ltd. on what per incuriam means, the Court held that M.D. Thomas is per incuriam and cannot be treated as binding precedent under Article 141. The law requires only that the complainant dispatch the notice to the correct address, and the presumption cannot be defeated by circumstances beyond his control.
On the facts, the Court found that the notice was dispatched to the correct address of the second respondent. He had appeared on summons delivered at the same address, his vakalatnama, appeal and revision petitions carried the same address, and he never disputed the address in his Section 313 statement. It was not even his case that his relationship with his mother was inimical or that they lived apart. The High Court had misread C.C. Alavi Haji, wrongly shifted the burden from the accused to the complainant, and ignored the material showing delivery at the correct address. Since he failed to prove the address was wrong, or that he was unaware of the notice, or that his relationship with his mother was inimical, the presumption stood unrebutted.
The appeal was allowed and the High Court's judgment was set aside. The Trial Court's sentence of six months' simple imprisonment and a fine of Rs 3,00,000, with the default stipulation, was restored, and pending applications were disposed of.
Precedents referred to
- K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510
- D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456
- C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 (three-Judge Bench)
- Madan & Co. v. Wazir Jaivir Chand, (1989) 1 SCC 264
- Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689
- M.D. Thomas v. P.S. Jaleel, (2009) 14 SCC 398 (held per incuriam)
- State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139
Provisions referred to
- Section 138, Negotiable Instruments Act, 1881 (proviso (b))
- Section 27, General Clauses Act, 1897
- Section 114, Indian Evidence Act, 1872
- Section 397, Code of Criminal Procedure, 1973
- Article 141 of the Constitution of India
Read the full judgment (PDF) ↗
Official source: Supreme Court of India. The PDF above is a copy from an open dataset of the court's public records.
This summary is prepared for general assistance only. It may contain errors and is not legal advice — rely on the full judgment.