How the Legal Operates When Sending Notice Under Section 138(b)
The prosecution of a cheque dishonour case under , is often a complex procedural journey. Among the most critical requirements for initiating a complaint is the issuance of a under proviso (b) of Section 138. A recurring legal hurdle in these proceedings is the question of —specifically, what legal presumption arises when a notice is dispatched by to the drawer of the cheque. The central question for many litigants is: what is the presumption under 138(b) regarding the address of the accused?
To understand this, one must look at the intersection of the Negotiable Instruments Act and the General Clauses Act. Generally, when a complainant dispatches a via to the of the drawer, the law creates a presumption that the service is effective. This rule is designed to prevent a situation where an accused can evade prosecution simply by avoiding the physical receipt of a letter.
The Role of Section 27 of the General Clauses Act
The legal framework supporting this presumption is primarily found in , read alongside . These provisions establish that if a notice is sent by to the , the court may presume that service has been effected at the time the letter would have been delivered in the ordinary course of business.
As noted in judicial findings, Section 27 of the GC Act gives rise to a presumption that the has been effected when it is sent to the by
Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
. This presumption is vital because it shifts the evidentiary burden. The complainant does not need to prove that the notice was physically handed to or read by the accused; they only need to prove that it was addressed and dispatched correctly.Distinguishing Between Giving and Receiving of Notice
A fundamental clarification provided by the courts is that the requirement of under Section 138(b) is distinct from the actual receipt of that notice. If every instance of non-availability or returned mail were treated as a failure of service, the object of the statute would be defeated by the conduct of the drawer.
Consequently, the requirement of ‘’ stands complied with once notice is dispatched to the 2026 0 Supreme(SC) 1199. This interpretation prevents cheque drawers from using avoidance strategies—such as moving, refusing to open mail, or being intentionally unavailable—to escape the consequences of a bounced cheque. Once the complainant has dispatched the notice to the , the legal process moves forward, and the burden shifts to the drawer to prove that the notice was not effectively served.
Addressing the Need for Specific Averments
In many legal disputes, defendants argue that the complaint is defective because it lacks a specific claim that the accused evaded service. However, courts have consistently held that the complainant is not required to include such assertions in their complaint.
It is not necessary to aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice
Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
. Furthermore, it is not necessary to aver in complaint under Section 138 that was evaded by accused or that accused had a role to play in return of notice unservedC. C. Alavi Haji VS Palapetty Muhammed - Crimes (2007)
. The presumption operates automatically by law, provided the foundational requirement—a —is met.What Constitutes a ?
The determination of a is usually based on the documents available in the judicial file. Courts frequently look at addresses disclosed in bail bonds, statements recorded under , or official business records.
If a notice is sent to an address that the accused has provided in legal proceedings, that address is generally considered correct. Even in cases where an address lacks granular detail, such as a house number, the presumption often stands. For instance, in instances involving a small ward of a village, arose even in absence of house number given in address as it was small ward of village
Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
. Courts emphasize that technical discrepancies in postal slips—such as a different address noted by a postman versus the address written by the sender—do not automatically invalidate the notice, provided the address on the envelope was indeed accurate 2012 0 Supreme(Bom) 1704Sheikh Shabbir VS Shaikh Yusuf
.Rebutting the Presumption: The Standard of Proof
The is not absolute; it is a . However, the accused cannot rebut this by simple denial or a vague claim of non-receipt.
- Substantive Evidence Required: A mere suggestion or bare denial is insufficient to rebut the presumption arising under Section 27 of the General Clauses Act
Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
. - : The accused must lead evidence that meets the standard of the , a standard commonly used in civil proceedings, rather than the stricter requirement of beyond reasonable doubt 2024 0 Supreme(HP) 227.
- Specific Proof: The drawer would need to establish facts such as the address being entirely incorrect, that the postal endorsement is false, or that they had no knowledge of the notice being delivered to their address despite it being accurate 2026 0 Supreme(SC) 1199.
The C.C. Alavi Haji Safeguard
A critical development in this area of law is the principle derived from the Supreme Court decision in . This ruling provides a final safety net for the accused. If a drawer claims they never received the notice sent by post, they still have an opportunity to make the payment.
Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court... make payment of the cheque amount
Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
. By failing to make this payment after receiving the court summons, the drawer loses the right to argue that the initial notice was not properly served. A person who does not pay within 15 days of receiving the court summons cannot obviously contend that there was no proper as required under Section 138Deelip Apte VS Nilesh P. Salgaonkar - Dishonour Of Cheque (2006)
2021 0 Supreme(Tri) 147.Conclusion
The law under Section 138(b) is designed to ensure that the process of cheque dishonour proceedings is not rendered futile by the evasive conduct of a drawer. By establishing a under Section 27 of the General Clauses Act, the legal system places the primary responsibility on the accused to keep their address details current and to respond to statutory demands.
While the complainant must ensure the notice is dispatched to the , they are generally shielded from needing to prove the physical act of delivery. Conversely, for an accused, relying solely on an argument of non-receipt is rarely successful. To effectively contest these proceedings, an accused must typically provide substantial evidence to rebut the legal presumption, rather than merely relying on denials. Parties involved in such litigation should consult with legal counsel to evaluate the specific evidence of service in their case, as outcomes often turn on the precise application of these evidentiary standards.
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