Cheque Dishonor | Service Of Notice On Relative Not Sufficient U/S 138 NI Act Unless Accused Had Knowledge: Kerala High Court
The Kerala High Court has made it clear that service of notice on relative of accused, raising demand on dishonour of cheque, is not sufficient to initiate proceedings under Section 138 of the Negotiable Instruments Act, unless it is shown that accused had knowledge of such notice.
"Service of notice on the relative of the accused is not sufficient, especially when there is no evidence from the side of the complainant that the accused was aware of the service of notice on his relative. If there is no such evidence, it is to be presumed that the statutory notice under Section 138(b) of the Negotiable Instruments Act, 1881 is not served on the accused," Justice P V Kunhikrishnan observed.
The bench was dealing with the revision petition preferred by a man against conviction under Section 138.
The case was initiated in 2019 after the accused issued a cheque worth ₹92,500 to the respondent-complainant. The cheque was dishonoured for insufficient funds. The complainant subsequently issued a legal notice, a mandatory step under section 138, before initiating prosecution.
However, in the revision petition, Saju the accused challenged the conviction on the ground that the statutory notice was not served on him directly but was instead accepted by a relative.
The Court observed, "evidence of PW1, it is clear that the notice was served on the relative of the accused. PW1 has no case that the accused has knowledge of the receipt of the notice by his relative. If that is the case, it can be presumed at least that there is constructive notice. There is no such case for the complainant. If that is the case, it cannot be said that there is any service of notice to the petitioner."
It relied on Thomas M D v P S Jaleel (2009) where service of notice on the accused's wife was held to be insufficient by the Supreme Court.
Accordingly, the High Court allowed the revision petition, acquitted the accused, and ordered that any amount deposited by him during the trial or appeal process be refunded.
Case Title - Saju v Shalimar Hardwares and Ors
Case No - Crl. Rev. Pet. 1015/ 2024
Citation - 2025 LiveLaw (Ker) 404
Counsel for Petitioner - Manjusha K, M T Sureshkumar, Sreelakshmi Babu
Counsel for Respondent - Hrithwik CS- Public Prosecutor