SC – Section 138 Notice Served at Correct Address but Received by mother of Accused is valid
Judgment dated 30.6.2026 of the Supreme Curt in SLP (Criminal) No.17180 of 2025 of Sainaba Vs. State of Kerala and another
On 11.8.20216, the appellant – complainant had issued the statutory demand notice under Section 138 of the Negotiable Instruments Act, by registered post on the correct address of the respondent no.2. It was received by the mother of the respondent no.2.
The respondent no.2 did not make any payment and also did not reply the said demand notice.
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 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 plea of defence. It is also be noted that in reply to the question u/s 313 Cr.P.C. the accused has not taken up any contention regarding the correctness of his address. It is also to be noted that the mother of the accused has received the demand notice issued through registered post. In the above circumstance it can be safely concluded that the statutory demand notice was served to the accused.”
However, the High Court allowed the revision on the ground that the demand notice was served on the mother of the respondent no.2.
Section 27 of the General Clauses Act, 1897 embodies the principle of presumption of service in respect of a document dispatched by registered post.
In the present case, the statutory demand notice under proviso (b) to Section 138 of the Act, 1881 was dispatched by the appellant through registered post to the correct address of respondent No.2. This is evident from the fact that respondent No.2 had entered appearance pursuant to summons delivered at the same address. The Vakalatnama filed by him also bore the same address as that mentioned in the statutory notice. Furthermore, both the appeal and revision petitions filed by respondent No.2 contained the identical address. Significantly, respondent No.2 never disputed the correctness of his address in his statement under Section 313 of the Code of Criminal Procedure. It was not even his case that his relationship with his mother was inimical or that they resided separately.
This Court is of the considered view that once the notice was dispatched to the correct address of respondent No.2, the statutory requirement of ‘giving of notice’ under proviso (b) to Section 138 of the Act, 1881 stood satisfied. Since respondent No.2 failed to prove either that the address was incorrect or that he was unaware of the notice being delivered to his address or that his relationship with his mother was inimical, the presumption remained unrebutted. The High Court erred in reversing the concurrent findings of the Trial Court solely on the ground that the notice was not personally delivered to respondent No.2.
