Kerala High Court.
Section 138 of Negotiable Act: Notice on Relative Not Sufficient for Cheque Dishonor Case, Says Kerala High Court: Kochi, India – In a significant ruling concerning the Negotiable Instruments Act, the Kerala High Court has clarified that merely serving a notice of cheque dishonor on a relative of the accused is not sufficient to initiate proceedings under Section 138, unless it can be demonstrably proven that the accused had direct knowledge of such notice. This decision provides crucial guidance on the stringent requirements for statutory notice in cheque dishonor cases.
Justice P.V. Kunhikrishnan, presiding over the bench, observed that “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.” This emphasizes the necessity for the complainant to establish the accused’s actual awareness of the notice, rather than merely proving its delivery to a family member.
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The High Court was addressing a revision petition filed by an individual challenging his conviction under Section 138 of the Negotiable Instruments Act. The case originated in 2019 when the accused had issued a cheque for ₹92,500 to the respondent-complainant, which subsequently bounced due to insufficient funds. Following the dishonor, the complainant issued a legal notice, a mandatory prerequisite for initiating prosecution under Section 138.
However, in his revision petition, the accused, identified as Saju, contested the conviction on the fundamental ground that the statutory notice was not served directly upon him. Instead, it was accepted by a relative. The Court meticulously reviewed the evidence presented, specifically noting the testimony of PW1 (Prosecution Witness 1), which confirmed that the notice had indeed been served on a relative.
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The Kerala High Court pointed out that the complainant had failed to establish that the accused had knowledge of the notice received 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,” the Court stated, underscoring the gap in the prosecution’s evidence.
In reaching its decision, the Kerala High Court drew upon the precedent set by the Supreme Court in the 2009 case of Thomas M.D. v. P.S. Jaleel, where service of notice on the accused’s wife was deemed insufficient.
Consequently, the High Court allowed the revision petition, leading to the acquittal of the accused. Furthermore, the Court ordered that any amount deposited by the accused during the trial or appeal process be promptly refunded. This judgment reinforces the legal principle that strict adherence to the notice requirements under the Negotiable Instruments Act is paramount for a valid prosecution.
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