Service of the Section 138 Notice by Registered Post: Receipt by a Family Member

Sainaba v. State of Kerala (2026 INSC 1069) and the Presumption of Service

On 30 September 2026, a Bench of Ahsanuddin Amanullah and Manmohan JJ. decided Sainaba v. State of Kerala & Anr., 2026 INSC 1069. The Court held that a statutory notice dispatched by registered post to the drawer’s correct address satisfies proviso (b) to Section 138 of the Negotiable Instruments Act, 1881, even where a family member signs for it. The Kerala High Court’s revisional order was set aside and the conviction restored. The Court also declared M.D. Thomas v. P.S. Jaleel, (2009) 14 SCC 398, per incuriam.

I. The Facts and the Decisions Below

The complainant lent Rs. 3,00,000 to the accused, who issued a cheque that was dishonoured. A statutory notice dated 31 August 2016 went by registered post to the accused’s address and was received by his mother. There was no payment and no reply.

The Trial Court convicted the accused on 10 July 2019 and imposed six months’ simple imprisonment and a fine of Rs. 3,00,000. The appellate court upheld that on 16 February 2023.

The Kerala High Court, in revision under Section 397 CrPC, set the conviction aside on 29 July 2025, reasoning that the complainant had not shown the accused knew of the notice his mother received.

II. The Statutory Frame

Proviso (b) to Section 138 requires the payee to give notice in writing within 30 days of information of dishonour. Section 94 of the Act leaves the mode of service open, so post is not mandatory.

Where the sender posts by registered post, Section 27 of the General Clauses Act, 1897 deems service to be effected at the time the letter would be delivered in the ordinary course, unless the contrary is proved. Section 114 of the Evidence Act, 1872 supports the same inference (now Section 119 of the Bharatiya Sakshya Adhiniyam, 2023).

Key Statutory Points

III. The Line of Authority

1. K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510

The Court read Section 27 of the General Clauses Act into Section 138. Where the sender has dispatched the notice by post to the correct address, service is deemed on the addressee unless he proves that it was not served and that he was not responsible for the non-service.

2. D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456

The Court distinguished “giving” of notice from “receipt” and held that a drawer cannot defeat the provision by making himself unavailable. The presumption of service remains open to rebuttal on the drawer’s own showing.

3. C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 (Three Judges)

This is the controlling authority. The Bench of Balakrishnan CJI, Raveendran and D.K. Jain JJ. held:

“In our opinion, therefore, when the notice is sent by registered post by correctly addressing the drawer of the cheque, the mandatory requirement of issue of notice in terms of Clause (b) of proviso to Section 138 of the Act stands complied with.”

It added a practical safety valve for a drawer who says he never received the notice:

“A person who does not pay within 15 days of receipt of the summons from the court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the GC Act and Section 114 of the Evidence Act.”

4. Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, (2014) 12 SCC 685

The High Court had quashed a complaint because it did not recite service of the notice. The Supreme Court restored it, holding that service is a matter of evidence and need not be averred. It stated:

“Section 27 of the GC Act gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post.”

IV. What Sainaba Decides

Dispatch to the Correct Address Completes the “Giving”

Dispatch to the correct address completes the “giving”. The complainant need not prove actual receipt by the drawer, or that the drawer evaded service.

Receipt by a Family Member Is Not a Defect

Receipt by a family member is not a defect. The Court held that identity of the recipient does not matter if the notice went to the correct address. Otherwise a complainant whose notice is delivered would fare worse than one whose notice is never delivered at all, and the latter already enjoys the presumption.

The Burden Shifts to the Drawer

The burden shifts to the drawer. In the Court’s words, once the notice was dispatched to the correct address, it was incumbent on the drawer to establish “either that the address was incorrect or that he had no knowledge of the notice having been brought to his address”.

M.D. Thomas Is Not Binding

M.D. Thomas is not binding.* That two-Judge decision set aside a conviction because the notice reached the drawer’s wife. It did not consider Alavi Haji* and was held per incuriam. The Court said it “cannot be treated as binding precedent under Article 141”.

How the Presumption Stood Unrebutted

The accused appeared on summons served at the same address. His vakalatnama, appeal and revision petitions carried the same address. He did not dispute the address in his Section 313 CrPC statement. He did not say that he and his mother lived apart or were on bad terms. The trial court record, Ext. P5, showed that his mother received the notice.

V. Practitioner’s Checklist

For the Complainant

• Send the notice by registered post to the address in the cheque, the bank records or the agreement. Keep the postal receipt and the acknowledgement or tracking record.
• Plead dispatch to the correct address. Do not rely on proving who signed for the notice.
• Place on record every later document showing the accused uses the same address.

For the Accused

• If the address is wrong, say so at the first opportunity and prove it. Silence in the Section 313 statement was fatal in Sainaba.
• To say that the notice never came to your knowledge, lead evidence of separate residence or a strained relationship with the recipient.
• Under Alavi Haji, a drawer who claims non-receipt can still pay within 15 days of receiving the summons and the complaint. Failing to do so weakens the defence.
• Do not rely on M.D. Thomas for family-member service. It is no longer good law.

VI. Conclusion

Sainaba closes a gap that the Kerala High Court had opened and that M.D. Thomas had made available. The question under proviso (b) is whether the notice was properly addressed and posted, not who signed for it. The drawer keeps one real defence, which is to prove the address was wrong or that the notice never reached his knowledge, and he must do so by evidence.

VII. Citation Table

Written By: Inder Chand Jain
Ph no: 8279945021, Email: [email protected]

• Dishonour Of Cheque And Its Laws
• Cheque Dishonour from Frozen Account – Is Section 138 NI Act Attracted?
• A Honourable Dissent: Reconsidering The Doctrine Of Personal Liability For Authorized Signatories Under Section 138 Of The Negotiable Instruments Act, 1881
• Legal Framework Governing Dishonour of Cheques in India and the Role of Police
• The Negotiable Instruments Act, 1881: Legal Framework Governing Checks, Bills, and Promissory Notes