Deemed Service Of Demand Notice Under Section 138 Of The Negotiable Instruments Act: A Critical Analysis Of Sainaba V. State Of Kerala
Rahul Binoy CHRIST (Deemed to be University), Delhi NCR
Sagar Talukder CHRIST (Deemed to be University), Delhi NCR
ABSTRACT
The condition of a written demand notice provided under Section 138 proviso (b) of the Negotiable Instruments Act, 1881 is a condition precedent to prosecution for cheque dishonor. The conflict is in cases when a notice is properly addressed to the drawer and is delivered to a family member or other person at that address. In Sainaba v. State of Kerala, the Supreme Court held that a notice sent by registered post to the drawer’s correct address is presumed to be served, even if the drawer’s mother receives it, and that the drawer must rebut the presumption. The Court held M.D. Thomas v. P.S. Jaleel to be per incuriam because it ignored the three-Judge Bench decision in C.C. Alavi Haji v. Palapetty Muhammed. Sainaba restores the presumption that follows from proper dispatch and places the burden of rebuttal on the drawer. The Court’s statement that the presumption arises irrespective of the recipient’s identity is, however, wide. It should not, however, be interpreted as an endorsement that every delivery is considered a constructive notice of service to a third party. Whereas the address, circumstances of delivery and accused's evidence is relevant for rebuttal.
Keywords: Section 138 of the Negotiable Instruments Act, 1881; Sainaba v. State of Kerala; statutory demand notice; deemed service of notice; presumption of service; burden of proof.
