Supreme Court: Cheque-bounce notice sent to the right address is valid even if a relative takes it; M.D. Thomas per incuriam

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.