A cheque drawer cannot escape prosecution because a family member signed for the statutory demand notice, the Supreme Court has held, declaring its own 2009 ruling that treated notice received by a wife as no service to be per incuriam and restoring a six-month sentence set aside by the Kerala High Court.
New Delhi: The Supreme Court on Wednesday, September 30, held that where a statutory demand notice under proviso (b) to Section 138 of the Negotiable Instruments Act, 1881 is dispatched by registered post to the drawer’s correct address, a presumption of valid service arises even if it is received by the drawer’s mother, and declared its earlier decision in M.D. Thomas v. P.S. Jaleel to be per incuriam [Sainaba v. State of Kerala and Another].
A Bench of Justice Ahsanuddin Amanullah and Justice Manmohan, in a judgment authored by Justice Manmohan, set aside the Kerala High Court’s July 29, 2025 judgment and restored the trial court’s conviction and sentence.
Background of the case
The complainant, Sainaba, alleged that the second respondent had borrowed Rs 3 lakh from her and issued a cheque drawn on the Catholic Syrian Bank, Perumbavoor branch, which was dishonoured on presentation. A demand notice dated August 31, 2016 was sent by registered post to his correct address and was received by his mother, Amina. He neither paid nor replied, and a complaint followed, registered as S.T. Case No. 114 of 2017.
Examined under Section 313 of the Code of Criminal Procedure, the accused said that he had borrowed Rs 7 lakh in all and repaid it fully, and that he had given a blank signed cheque when borrowing Rs 3 lakh. The trial court convicted him on July 10, 2019 and sentenced him to six months’ simple imprisonment with a fine of Rs 3 lakh and a default term. It held that the Act requires only a registered demand notice to the accused, and that one had been sent to his correct address, the same address that appeared in the complaint and on his vakalatnama. The Additional District and Sessions Judge dismissed his appeal on February 16, 2023.
The Kerala High Court, in a criminal revision, set aside the concurrent findings, reasoning that unless there was evidence that the accused was aware of the notice received by his mother, service on him could not be concluded. Sainaba appealed. Despite service of notice in December 2025, no one appeared for the second respondent, and the State of Kerala told the Court it was not a contesting respondent.
What the complainant argued
Counsel for the complainant argued that the High Court’s judgment contradicted C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456, Madan and Co. v. Wazir Jaivir Chand, (1989) 1 SCC 264 and Subodh S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689, which hold that dispatch by registered post to the correct address raises a presumption of due service under Section 27 of the General Clauses Act, 1897 and Section 114 of the Evidence Act, 1872. It was pointed out that the accused never disputed his address, appeared on summons served there, and that the High Court’s approach would hand an easy escape to unscrupulous drawers. Counsel also argued that the High Court exceeded its revisional jurisdiction under Section 397 of the CrPC by re-appreciating evidence and disturbing concurrent findings of fact.
Rebuttable presumption of service
The Court traced the settled position through K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510, where it held that giving of notice is distinct from receiving it, through D. Vinod Shivappa, which approved that view, to C.C. Alavi Haji, where a three-Judge Bench held that there is no material difference between the presumptions under Section 27 of the General Clauses Act and Section 114 of the Evidence Act. On these authorities, once a notice is correctly addressed and sent by registered post, the requirement of proviso (b) stands complied with, and it is for the drawer to rebut the presumption by showing that he had no knowledge that the notice was brought to his address, that the address was incorrect, or that the postal endorsement was wrong.
M.D. Thomas held per incuriam
The Court then turned to M.D. Thomas v. P.S. Jaleel, (2009) 14 SCC 398, in which a Division Bench had set aside a Section 138 conviction solely because the notice was served on the drawer’s wife and not on him. It held that the decision was rendered without reference to the binding three-Judge ruling in C.C. Alavi Haji, without any finding on whether the wife lived with the drawer or whether the notice was correctly addressed, and by wrongly treating a wife as equivalent to an unrelated third party. It added that treating M.D. Thomas as binding would be anomalous, since a complainant would enjoy the presumption where a correctly addressed notice is not delivered at all, but lose it where the notice is actually delivered to a family member at the same address. The Court held:
“Consequently, this Court holds that the judgment in M.D. Thomas (supra) is per incuriam and cannot be treated as binding precedent under Article 141 of the Constitution.”
It reiterated the governing test:
“This Court reiterates that the law requires only that the complainant dispatch the notice to the correct address of the drawer and the presumption in his favour cannot be defeated by circumstances beyond his control.”
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Presumption unrebutted on the facts
Applying these principles, the Court noted that the notice went to the accused’s correct address, as shown by his appearance on summons delivered there and by the same address appearing on his vakalatnama, his appeal and his revision petition. He never disputed the address in his Section 313 statement, and it was not his case that he was estranged from his mother or lived separately from her. Since he failed to show that the address was wrong or that he was unaware of the notice, the presumption remained unrebutted.
The Court found that the High Court had completely misread C.C. Alavi Haji by requiring proof that the drawer knew of the notice, thereby shifting the burden from the accused to the complainant, and had overlooked the material showing delivery at the correct address. It held that the High Court erred in reversing the concurrent findings solely because the notice was not personally delivered.
Directions
The appeal was allowed and the High Court’s judgment set aside. The trial court’s judgment sentencing the second respondent to six months’ simple imprisonment and a fine of Rs 3 lakh, with a default term of further imprisonment, was restored.
Case Title: Sainaba v. State of Kerala and Another
Case Number: Criminal Appeal arising out of SLP (Crl.) No. 17180 of 2025
Citation: 2026 INSC 1069
Bench: Justice Ahsanuddin Amanullah and Justice Manmohan, Supreme Court of India
Date of Judgment: September 30, 2026
Appearance: Counsel for the appellant-complainant; State of Kerala not a contesting respondent; no appearance for respondent No. 2 despite service