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2026 Supreme(SC) 1199
SUPREME COURT OF INDIA
Ahsanuddin Amanullah, Manmohan, JJ.
Sainaba – Appellant
Versus
State Of Kerala & Anr. – Respondents
Criminal Appeal No. 4640 of 2026 (Arising out of SLP (Crl.) No. 17180 of 2025)
Decided On : 30-09-2026
For the Petitioner(s): Mr. Tom Joseph- 2953, AoR Mr. Johnson Varikkappalli, Adv. Mr. Linto K.b., Adv.
For the Respondent(s): Mr. Nishe Rajen Shonker- 1698, AoR
IMPORTANT POINT
Dishonour of cheque – Giving of notice is different from receiving of notice – There exists rebuttable presumption of valid service of statutory notice under Section 138 of Act, 1881, where such notice is dispatched by registered post to correct address of drawer – Requirement of ‘giving of notice’ stands complied with once notice is dispatched to correct address.
Headnote:
Negotiable Instruments Act, 1881 – Section 138 – General Clauses Act, 1897 – Section 27 – Indian Evidence Act, 1872 – Section 114 – Dishonour of cheque – Reversal of conviction on the ground of non-service of statutory demand notice – Giving of notice is different from receiving of notice – There exists rebuttable presumption of valid service of statutory notice under Section 138 of Act, 1881, where such notice is dispatched by registered post to correct address of drawer – Requirement of ‘giving of notice’ stands complied with once notice is dispatched to correct address – It is thereafter incumbent upon drawer to rebut presumption by establishing either that he had no knowledge of notice having been brought to his address or that notice was not sent to correct address or that postal endorsement is incorrect – If every instance of non-availability were to be treated as absence of service, very object of statute would be defeated – There is no distinction between Section 114 of Evidence Act, 1872 and Section 27 of General Clauses Act, 1897 both of which raise presumption that service is effected when notice is dispatched to correct address by registered post – Law requires only that complainant dispatch notice to correct address of drawer and presumption in his favour cannot be defeated by circumstances beyond his control – High Court erred in reversing concurrent findings of Trial Court solely on the ground that notice was not personally delivered to respondent – Judgment of conviction and order of sentence passed by Trial Court restored. (Paras 20, 21, 23, 24, 29, 31, 35 and 36)
Facts of the case:
Present appeal has been filed challenging the judgment and order dated 29th July 2025 passed by Kerala High Court in Crl. R.P. No. 865 of 2023, whereby concurrent findings of Trial Court and the Appellate Court convicting and sentencing respondent No.2 under Section 138 of Negotiable Instruments Act, 1881, were set aside on the ground of non-compliance of proviso (b) to Section 138 of Act, 1881 inasmuch as statutory demand notice had not been served upon respondent No.2, but was served upon mother of respondent No.2.
Findings of Court:
Judgment passed by Trial Court sentencing respondent No.2 to undergo simple imprisonment for six months and to pay fine of Rs.3,00,000/-, with default stipulation of further imprisonment stands restored.
Result : Appeal allowed.
JUDGMENT :
MANMOHAN, J.
1. Leave granted.
2. Present appeal has been filed challenging the judgment and order dated 29th July 2025 passed by the Kerala High Court in Crl. R.P. No. 865 of 2023, whereby the concurrent findings of the Trial Court and the Appellate Court convicting and sentencing respondent No.2 under Section 138 of the Negotiable Instruments Act, 1881 (“the Act, 1881”), were set aside on the ground of non-compliance of proviso (b) to Section 138 of the Act, 1881 inasmuch as the statutory demand notice had not been served upon respondent No.2, but was served upon the mother of respondent No.2. A perusal of the paper book shows that notice in the present matter was issued on 10th November 2025 and the same was served upon respondent No.2 on 11th December 2025. Despite due service of notice, there is no appearance on behalf of respondent No.2. Consequently, this Court had no option but to proceed with hearing of the matter.
BRIEF FACTS
4. In the complaint under Section 138 of the Act 1881, it was alleged by the appellant-complainant that respondent No.2 had borrowed a sum of Rs.3,00,000/-from the appellant-complainant. Towards re-payment of the same, respondent No.2-accused had issued a cheque bearing Cheque No. 479097 drawn on the Catholic Syrian Bank, Perumbavoor Branch, which was dishonoured upon presentation.
5. The appellant-complainant issued a statutory demand notice dated 31st August 2016 through registered post at the correct address of respondent No.2, which was received by his mother. Despite receipt of notice at his address, respondent No.2 did not make any payment or file any reply to the legal notice.
6. Thereafter, the appellant-complainant instituted the present complaint under Section 138 of the Act, 1881 being S.T. Case No. 114 of 2017. When respondent No.2 was examined under Section 313 of Code of Criminal Procedure, he stated that he had altogether borrowed Rs.7,00,000/- from the complainant but had repaid the entire amount. He further stated that he had given a blank signed cheque while borrowing Rs.3,00,000/-.
7. The Trial Court by way of its judgment dated 10th July 2019 convicted respondent No.2 under Section 138 of the Act, 1881 and sentenced him to undergo simple imprisonment for six months along with a fine of Rs.3,00,000/-, with a default stipulation of further imprisonment. The relevant portion of the Trial Court judgment with respect to service of notice is reproduced hereinunder:
- “8. One of the contentions taken by the accused is that lawyer notice was not received by the accused and the same was received by one Amina. Exhibit P4 is the receipt of the lawyer notice and Ext.P5 is the acknowledgement card of the lawyer notice. On perusal of Ext.P3 lawyer notice, Ext.P5 acknowledgement card it would show that address mentioned in those documents is one and the same as mentioned in the complaint and vakalath of the accused. When the summons was issued from the court in the same address, accused appeared before the court and contested the matter. What the provision of the Negotiable Instruments Act mandates is issue a registered demand notice to the accused. In this case complainant has issued Ext.P3 lawyer notice demanding the amount in the correct address of the accused. By sending lawyer notice in the correct address of the accused complainant has complied with the mandatory requirement under the provisions of the Negotiable Instruments Act.”
8. The respondent No.2 filed Criminal Appeal No. 175 of 2019 challenging the judgment of the Trial Court, which was dismissed by Additional District & Sessions Judge by judgment dated 16th February 2023. The relevant portion of the Appellate Court judgment with respect to service of notice is reproduced hereinunder:
- “11. In the instant case, perusal of the records shows that the legal demand notice was sent by the complainant on the correct address of the accused. It is to be noted that the accused has not challenged the correctness of the address in the pl
