Sainaba v. State of Kerala & Anr.

What happened

The complainant alleged that the accused had borrowed ₹3,00,000 and issued cheque no. 479097, drawn on the Catholic Syrian Bank, Perumbavoor branch, which was dishonoured on presentation. The statutory demand notice dated 31 August 2016 was sent by registered post to the accused's correct address and was received by his mother; he neither paid nor replied. When examined under section 313 of the Code of Criminal Procedure he said that he had borrowed ₹7,00,000 in all, had repaid it, and had given a blank signed cheque. The trial court convicted him on 10 July 2019 and sentenced him to six months' simple imprisonment with a fine of ₹3,00,000. The Kerala High Court, in a revision decided on 29 July 2025, set the conviction aside because the notice had not been served on him personally.

Questions before the court

• Is a section 138 demand notice validly given when it is dispatched to the drawer's correct address and received by an adult family member?
• Who bears the burden of showing that the notice did not reach the drawer?

Why the court ruled this way

The Court restated that dispatch by registered post to the correct address raises a rebuttable presumption of service, so that the requirement of "giving" notice is met on dispatch and the drawer must show that the address was wrong, that he had no knowledge of the notice being brought to his address, or that the postal endorsement was incorrect (paragraph 24). It held that the earlier decision in M.D. Thomas, which had treated a recipient wife as an unrelated third party, was decided without reference to binding precedent and without a finding on whether the recipient lived with the drawer or whether the notice went to the correct address (paragraph 27). The High Court had misread C.C. Alavi Haji and wrongly shifted the burden from the drawer to the complainant (paragraphs 33 and 34).

Controlling point

For section 138 of the Negotiable Instruments Act, a notice properly sent to the drawer's correct address and received by an adult family member satisfies the requirement of giving notice unless the drawer rebuts the presumption of service.

Order and next steps

The appeal was allowed and the High Court's judgment set aside. The trial court's conviction and its sentence of six months' simple imprisonment and a fine of ₹3,00,000, with the default stipulation, were restored. The appeal and pending applications stood disposed of.

Practical implications

A complainant should keep the registered-post receipt and acknowledgement that show the notice went to the drawer's correct address. A drawer who says the notice never reached him must be ready to prove that the address was wrong, that he did not know of the delivery or that the postal endorsement was false; the fact that someone else signed for the notice does not, by itself, defeat the complaint.

Limits of this ruling

• The presumption of service is rebuttable. The Court proceeded on the finding that the notice reached the correct address and that the accused offered no proof of a wrong address, of unawareness of the delivery or of strained relations with his mother (paragraph 35).