Kerala High Court
Noorudheen vs State Of Kerala on 29 July, 2025
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
CRL.REV.PET NO. 865 OF 2023 1
2025:KER:55419
"CR"
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 29TH DAY OF JULY 2025 / 7TH SRAVANA, 1947
CRL.REV.PET NO. 865 OF 2023
AGAINST THE JUDGMENT DATED 16.02.2023 IN Crl.A NO.175
OF 2019 OF III ADDITIONAL DISTRICT COURT, PALAKKAD / II
ADDITIONAL MACT, PALAKKAD ARISING OUT OF THE JUDGMENT DATED
10.07.2019 IN ST NO.114 OF 2017 OF JUDICIAL MAGISTRATE OF
FIRST CLASS II, ALATHUR
REVISION PETITIONER/S:
NOORUDHEEN
AGED 43 YEARS
S/O YUSAF GHANI, KONGATTU PARAMBIL, AYILOOR PO,
CHITTUR TALUK, PALAKKAD DISTRICT ., PIN - 678510
BY ADVS.
SHRI.THAREEQ ANVER
SRI.P.K.MOHANAN(PALAKKAD)
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
CRL.REV.PET NO. 865 OF 2023 2
2025:KER:55419
KERALA, ERNAKULAM., PIN - 682031
2 SAINABA
AGED 57 YEARS
W/O HANEEFA, NEAR MOSQUE, KADAMBIDI, (POST)
CHITTILANCHEERY, ALATHUR TALUK, PALAKKAD., PIN -
678704
BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL)
SRI. HRITHWIK CS, SR.PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 41.07.2025, THE COURT ON 29.07.2025 DELIVERED
THE FOLLOWING:
CRL.REV.PET NO. 865 OF 2023 3
2025:KER:55419
"CR"
P.V.KUNHIKRISHNAN, J
--------------------------------------
Crl.R.P No. 865 of 2023
--------------------------------------
Dated this the 29th day of July, 2025
ORDER
The short point raised in this revision is that the dictum laid down by this Court in Saju v. Shalimar Hardwares, Kattanam [2025 KHC OnLine 719] requires reconsideration because three decisions of the Apex Court (Vinod Shivappa v. Nanda Belliappa [2006 KHC 840], C C Alavi Haji v. Palapetty Muhammed and Another [2007 (2) KHC 932] and M/s Indo Automobiles v. M/s. Jai Durga Enterprises and Others [2008 (3) KHC 815]) and two decisions of this Court (Komala Unnikrishnan v. Manoj Kumar K. [2023 KHC 783] and Sarath C v. Muthoot Leasing and Finance CRL.REV.PET NO. 865 OF 2023 4 2025:KER:55419 Ltd. [2024 KHC 7092]) were not considered by this Court while delivering the above judgment.
2. I will first narrate the facts in this case: The revision petitioner is the accused in ST No.114/2017 on the files of the Judicial First Class Magistrate Court -II, Alathur. The above case was filed by the 2nd respondent herein alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "NI Act"). (Hereinafter, the revision petitioner is mentioned as the accused and the 2nd respondent is mentioned as the complainant).
3. The case of the complainant is that, the accused borrowed an amount of Rs. 3,00,000/- from the complainant, and to discharge the said debt, the accused issued a cheque bearing No.479097 of Catholic Syrian Bank Ltd., Perumbavoor Branch. When the cheque was presented by the complainant before the State Bank of India, Nenmara Branch, the same CRL.REV.PET NO. 865 OF 2023 5 2025:KER:55419 was dishonoured, stating that there is no sufficient fund in the account maintained by the accused. Though the complainant issued a lawyer notice, the accused did not pay the amount. Hence, the complaint was filed.
4. To substantiate the case, the complainant herself was examined as PW1. One witness was also examined on the side of the complainant. Ext.P1 to P6 are the exhibits marked on the side of the complainant. One witness was examined on the side of the defence as DW1, and Exhibit D1 is the exhibit marked on the side of the defence. After going through the evidence and documents, the trial court found that the accused committed the offence under Section 138 of the NI Act, and he was sentenced to undergo simple imprisonment for a period of six months and to pay a fine of Rs. 3,00,000/-. In default of payment of the fine amount, the accused is directed to undergo simple imprisonment for a further period CRL.REV.PET NO. 865 OF 2023 6 2025:KER:55419 of six months. The fine amount, if realised, is directed to be paid to the complainant as compensation under Section 357(1)(b) of Cr.PC. Aggrieved by the conviction and sentence, the accused filed an appeal before the Sessions Court, Palakkad. The Third Additional District and Sessions Judge considered the appeal. After going through the evidence and documents, the Appellate Court confirmed the conviction imposed on the accused under 138 of the NI Act. The sentence imposed on the accused is also confirmed. Aggrieved by the conviction and sentence imposed by the Trial Court, which is confirmed by the Appellate Court, this revision is filed.
5. Heard Adv. Sri. P K Mohanan, who appeared for the accused and also Adv. Sri. V A Johnson for the complainant.
6. The counsel for the accused relied on the judgment of this Court in Saju's case (supra) and submitted that, in this CRL.REV.PET NO. 865 OF 2023 7 2025:KER:55419 case, the statutory notice under Section 138(b) of the NI Act is not served on the accused but served to another person. Therefore, the counsel submitted that the accused is entitled acquittal. Adv. Sri. Johnson, who appeared for the complainant, submitted that the dictum laid down by this Court in Saju's case (supra) requires reconsideration.
7. Adv. Johnson submitted that, the Apex court in C.C.Alavi Haji's case (supra), M/s Indo Automobiles case (supra), and in Vinod Shivappa's case (supra) considered the principle "giving notice" as per Section 138(b) of the Negotiable Instruments Act. The counsel also relied on the judgment of this Court in Sarath's case (supra) and Komala Unnikrishnan's case (supra) and submitted that the principles laid down by this Court in Saju's case (supra) are without referring to the decisions of the Apex Court and this Court. Hence, the principle laid down by this court in Saju's case (supra) requires reconsideration, is the submission.
CRL.REV.PET NO. 865 OF 2023 8
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8. I will consider this point in detail. In Saju's case (supra), this Court relying on the judgment of the Apex Court in Thomas M.D v P.S.Jaleel and Another [2009 KHC 4398] held that, service of notice to the relatives 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 relatives. This Court also observed that, if there is no such evidence regarding the knowledge of the accused about the notice, it is to be presumed that a statutory notice under Section 138(b) of NI Act is not served on the accused. The relevant portion of the judgment is extracted hereunder:
9. From the above-extracted passage in the 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. CRL.REV.PET NO. 865 OF 2023 9
2025:KER:55419 Moreover, there is no substantial compliance with Section 138(b) of the Act either.
10. The Apex Court in Thomas M.D. v. P.S. Jaleel and Another [2009 KHC 4398] has considered a similar situation. Paragraphs 4 and 5 of the said judgment read thus:
"4. Learned counsel for the appellant argued that his client's conviction is liable to be set aside because before filing complaint, the respondent did not serve upon him notice as per the requirement of cl.(b) of proviso to S.138 of the Act. He submitted that service of notice on the appellant's wife cannot be treated as compliance of the mandate of law. Learned counsel for respondent No.1 did not dispute that the notice issued by his client was, in fact, served upon the appellant's wife but argued that this should be treated as sufficient compliance of the requirement of giving notice of demand.
5. S.138 deals with the dishonour of cheque for insufficiency, etc., of funds in the accounts of the person who draws the cheque and lays down that such person shall be deemed to have committed an offence and shall, without CRL.REV.PET NO. 865 OF 2023 10 2025:KER:55419 prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both. Proviso to S.138 specifies the conditions which are required to be satisfied before a person can be convicted for an offence enumerated in the substantive part of the section. Cl. (b) of the proviso to S.138 cast on the payee or the holder in due course of the cheque, as the case may be, a duty to make a demand for payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid. In the present case, the notice of demand was served upon the wife of the appellant and not the appellant. Therefore, there is no escape from the conclusion that complainant - respondent had not complied with the requirement of giving notice in terms of cl.(b) of proviso to S.138 of the Act. Unfortunately, the High Court overlooked this important lacuna in the complainant's case.CRL.REV.PET NO. 865 OF 2023 11
2025:KER:55419 Therefore, the conviction of the appellant cannot be sustained."
11. Therefore, the 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. The upshot of the above discussion is that the conviction and sentence imposed on the petitioner are to be set aside."
9. The main contention of the complainant is that, this Court has not considered the dictum laid down by the Supreme Court in three decisions and also the dictum laid down by this Court in two decisions. I will consider all those cases hereinafter. The counsel for the complainant relied on the judgment of Vinod Shivappa's case (supra) and contended that, if notice is sent at the correct address, there is a presumption in favour of the complainant that the notice is served. Therefore, once the CRL.REV.PET NO. 865 OF 2023 12 2025:KER:55419 complainant proves that notice is sent to the accused at the correct address, the accused cannot contend that, he has not received the notice. It will be better to extract the relevant portion of Vinod Shivappa's case.
"13. If a notice is issued and served upon the drawer of the cheque, no controversy arises. Similarly if the notice is refused by the addressee, it may be presumed to have been served. This is also not disputed. This leaves us with the third situation where the notice could not be served on the addressee for one or the other reason, such as his non availability at the time of delivery, or premises remaining locked on account of his having gone elsewhere etc. etc. If in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. It would then be very easy for an unscrupulous and dishonest drawer of a cheque to make himself scarce for sometime after issuing the cheque so that the requisite statutory notice can never be served upon him and consequently he can never be prosecuted. There is good authority to support the proposition that once the complainant, the payee of the cheque, issues notice to the drawer of the cheque, the cause of action to CRL.REV.PET NO. 865 OF 2023 13 2025:KER:55419 file a complaint arises on the expiry of the period prescribed for payment by the drawer of the cheque. If he does not file a complaint within one month of the date on which the cause of action arises under clause (c) of the proviso to S.138 of the Act, his complaint gets barred by time. Thus, a person who can dodge the postman for about a month or two, or a person who can get a fake endorsement made regarding his non availability can successfully avoid his prosecution because the payee is bound to issue notice to him within a period of 30 days from the date of receipt of information from the bank regarding the return of the cheque as unpaid. He is, therefore, bound to issue the legal notice which may be returned with an endorsement that the addressee is not available on the given address.
14. We cannot also lose sight of the fact that the drawer may by dubious means manage to get an incorrect endorsement made on the envelope that the premises has been found locked or that the addressee was not available at the time when postman went for delivery of the letter. It may be that the address is correct and even the addressee is available but a wrong endorsement is manipulated by the addressee. In such a case, if the facts are proved, it may amount to refusal of the notice. If the CRL.REV.PET NO. 865 OF 2023 14 2025:KER:55419 complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. This, however, is a matter of evidence and proof, Thus even in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, it would be pre-mature at the stage of issuance of process, to move the High Court for quashing of the proceeding under S.482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence. In such a case the High Court ought not to exercise its jurisdiction under S.482 of the Code of Criminal Procedure." (Underline supplied)
10. First of all, it is to be noted that the principles laid down by the Apex Court are about the Jurisdiction of the High Court CRL.REV.PET NO. 865 OF 2023 15 2025:KER:55419 under Section 482 to quash the proceedings based on the contention that the notice is not served. The Apex Court observed that, if notice is served upon the drawer of the cheque, no controversy arises, and similarly, if the notice is refused by the addressee, it may be presumed to have been served. The Apex Court while considering the third situation observed that, where the notice could not be served on the addressee for one or other reason such as his non availability at the time of delivery or premises remaining locked on account of his having gone elsewhere etc, and if in each such case the law is understood to mean that there has been no service of notice, it would completely defeat the very purpose of the Act. There is no dispute with the above dictum laid down by the Apex Court. The point decided by the Apex Court in Vinod Shivappa's case relates to situations in which the notice is returned with an endorsement that the non- availability of the addressee or premises remaining locked on account of the addressee having gone elsewhere etc. The Apex CRL.REV.PET NO. 865 OF 2023 16 2025:KER:55419 Court has not considered the situation in which the notice is served to a third person other than the accused, and there is no evidence before the court to the effect that the accused was aware of the notice served to the third person. As I mentioned earlier, the above dictum was laid down by the Apex Court in a challenge against an order passed by the High Court in a petition under Section 482 Cr.P.C. This Court in Saju's case was considering a revision against the conviction and sentence after trial. This Court, after considering the evidence available, held that there is no material to show that the accused received the notice and there is material to show that, the notice was served to a third person. In other words, this court clearly stated in Saju's case (supra) that, the service of notice on the relative of the accused is not sufficient when there is no evidence from the side of the complainant that the accused was aware of the service of notice on his relative. That is the principle laid down by the Apex Court in Thomas MD's case (supra). Moreover, Thomas MD's case (supra) is CRL.REV.PET NO. 865 OF 2023 17 2025:KER:55419 not overruled or considered by the Apex Court in Vinod Shivappa's case (supra). Therefore, I am of the considered opinion that the principle laid down by this Court in Saju's case (supra) is not against the dictum laid down by the Apex Court in Vinod Shivappa's case (supra).
11. The 2nd decision relied on by the complainant is CC Alavi Haji's case (supra). In CC Alavi Haji's case (supra), a three-member bench of the Apex Court was considering a question referred by a two-member bench of the Apex Court. The question referred by the two-member bench of the Apex Court is narrated in paragraph 2 of the judgment in CC Alavi Haji's case (supra).
"2. The matter has been placed before the three Judge Bench in view of a Reference made by a two Judge Bench of this Court, pertaining to the question of service of notice in terms of Clause (b) of proviso to S.138 of the Negotiable Instruments Act, 1881 (in short 'The Act'). Observing that while rendering the decision in D. Vinod Shivappa v. Nanda Belliappa, 2006 SCC (6) 456 : 2006 KHC 840 : 2006 (3) KLT CRL.REV.PET NO. 865 OF 2023 18 2025:KER:55419 94 : AIR 2006 SC 2179 : JT 2006 (11) SC 187 : 2006 (2) KLD 612 : 2006 (3) SCC (Cri) 114 : 2006 CriLJ 2897 : 2006 (130) DLT 534, This Court has not taken into consideration the presumption in respect of an official act as provided under S.114 of the Indian Evidence Act, 1872, the following question has been referred for consideration of the larger Bench:
Whether in absence of any averments in the complaint to the effect that the accused had a role to play in the matter of non receipt of legal notice; or that the accused deliberately avoided service of notice, the same could have been entertained keeping in view the decision of this Court in Vinod Shivappa's case (supra)?"
12. The decision of the Apex Court in CC Alavi Haji's case (supra) is an answer to the question referred to above. In other words, in CC Alavi Haji's case (supra), the question decided by the Apex Court is whether any averments in the complaint to the effect that the accused had a role to play in the matter of non-receipt of legal notice or that the accused deliberately avoided service of notice is necessary, in the light CRL.REV.PET NO. 865 OF 2023 19 2025:KER:55419 of Vinod Shivappa's case (supra). That is not the situation in Saju's case (supra). That was a case, which was decided by this Court against the final judgment by which the accused was convicted and sentenced by the trial court, which was confirmed by the appellate court. Moreover, in CC Alavi Haji's case (supra), the Apex Court in paragraph 6 observed like this :
"Therefore, the observance of stipulations in quoted Clause (b) and its aftermath in Clause (c) being a pre condition for invoking S.138 of the Act, giving a notice to the drawer before filing complaint under S.138 of the Act is a mandatory requirement. "
13. Therefore, in CC Alavi Haji's case (supra), the Apex Court clearly stated that giving notice to the drawer before filing a complaint under Sec. 138 of the Act is a mandatory requirement. If it is proved by the accused in the trial that the notice was not received by him and he has no knowledge about such notice, there is a violation of the provision, and consequently, the prosecution CRL.REV.PET NO. 865 OF 2023 20 2025:KER:55419 will not stand. In CC Alavi Haji's case (supra), the Apex Court also considered the decision in K.Bhaskaran v. Sankaran Vaidyan Balan and Anr. [AIR 1999 SC 3762] and observed that giving notice is a process of which receipt is the accomplishment. It is for the payee to perform the former process by sending the notice to the drawer at the correct address, and for the drawer to comply with clause (c) of the proviso to Sec. 138 of the NI Act. If the complainant proved that notice was issued at the correct address, there is a preliminary presumption in favour of the complainant. But, if the accused proves based on the evidence of the complainant himself that the notice is not served to the accused, but to a third person and the accused is not aware of the same, there is no "accomplishment" as observed by the Apex Court in CC Alavi Haji's case (supra) and K.Bhaskaran's case (supra). It is true that in CC Alavi Haji's case (supra), the Apex Court observed that the court should not adopt an interpretation which helps a dishonest evader and clips an honest payee, as that would defeat the very legislative measure. The Apex Court also observed CRL.REV.PET NO. 865 OF 2023 21 2025:KER:55419 that the thrust in the clause is on the need to "make a demand", which is only the mode for making such a demand, which the legislature has prescribed. A payee can send the notice for doing his part for giving notice. Once it is dispatched, his part is over, and the next depends on what the sendee does.
14. If the sendee proves that the notice is not received by him but by a third person and he is not aware of the receipt of the notice by the third person, it cannot be said that there is sufficient compliance with Section 138(b) of the NI Act. The Apex Court in C.C.Alavi Haji's case (supra) observed that service of notice is deemed to have been effected on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. That is what was stated in Saju's case (supra). Facts in Saju's case (supra) are that the notice is served to a relative of the accused, and the complainant has not adduced any evidence to show that the accused is aware of the notice, even though it is challenged. Therefore, relying on the principle laid down by the Apex Court in Thomas's case (supra), this Court observed that CRL.REV.PET NO. 865 OF 2023 22 2025:KER:55419 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. In C.C.Alavi Haji's case (supra), the Apex Court observed that if the complainant is able to prove that the drawer of the cheque knew about the notice and deliberately evaded service and got a false endorsement made only to defeat the process of law, the Court shall presume service of notice. But it is clearly observed in paragraph 9 of C.C.Alavi Haji's case (supra) that the same is a matter of evidence and proof. Therefore, the Apex Court observed that in a case where the notice is returned with the endorsement that the premises has always been found locked or the addressee was not available at the time of postal delivery, it will be open to the complainant to prove at the trial by evidence that the endorsement is not correct and that the addressee, namely the drawer of the cheque, with knowledge of the notice had deliberately avoided to receive notice. Therefore, CRL.REV.PET NO. 865 OF 2023 23 2025:KER:55419 the Apex Court observed that it would be premature at the stage of issuance of process to move to the High Court for quashing of the proceedings under Section 482 of the Code of Criminal Procedure. The question as to whether the service of notice has been fraudulently refused by unscrupulous means is a question of fact to be decided on the basis of evidence and in such a case the High Court ought not to exercise its jurisdiction under Section 482 of the Code of Criminal Procedure is the dictum laid down by the Apex Court in C.C.Alavi Haji's case (supra). That principle is not at all applicable in the dictum laid down by this Court in Saju's case (supra). In Saju's case (supra), it is a revision against the conviction and sentence. The complainant adduced evidence. Based on the evidence, this Court held that there is no explanation or evidence from the side of the complainant that the notice was served to the accused, and the evidence CRL.REV.PET NO. 865 OF 2023 24 2025:KER:55419 only shows that it was served to a third person. In such circumstances, this Court held that the mandatory notice was not served to the accused.
15. In C.C.Alavi Haji's case (supra), the Apex Court also considered Section 27 of the General Clauses Act, 1897 (for short, G.C Act) and held that; where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle in Section 27 of the G.C. Act would be attracted and the requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque. But it is clearly stated by the Apex Court in paragraph 10 of the judgment in C.C.Alavi Haji's case (supra) that, it would be without prejudice to the CRL.REV.PET NO. 865 OF 2023 25 2025:KER:55419 right of the drawer to show that he had no knowledge that the notice was brought to his address.
16. The counsel for the petitioner, relying on paragraphs 14 and 15 of the judgment in C.C.Alavi Haji's case (supra), submitted that the burden is on the accused to prove that the notice is not served to him. It will be better to extract paragraphs 14 and 15 of the above judgment:
"14. Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post. In view of the said presumption, when stating that a notice has been sent by registered post to the address of the drawer, it is unnecessary to further aver in the complaint that in spite of the return of the notice unserved, it is deemed to have been served or that the addressee is deemed to have knowledge of the notice. Unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business. This Court has already held that when a notice is sent by registered post and CRL.REV.PET NO. 865 OF 2023 26 2025:KER:55419 is returned with a postal endorsement refused or not available in the house or house locked or shop closed or addressee not in station, due service has to be presumed. [Vide Jagdish Singh vs. Natthu Singh ; State of M.P. Vs. Hiralal & Ors. And V.Raja Kumari Vs. P.Subbarama Naidu & Anr.] It is, therefore, manifest that in view of the presumption available under Section 27 of the Act, it is not necessary to aver in the complaint under Section 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved.
15. Insofar as the question of disclosure of necessary particulars with regard to the issue of notice in terms of proviso (b) of Section 138 of the Act, in order to enable the Court to draw presumption or inference either under Section 27 of the G.C. Act or Section 114 of the Evidence Act, is concerned, there is no material difference between the two provisions. 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 is needless to emphasise that the complaint must contain basic facts CRL.REV.PET NO. 865 OF 2023 27 2025:KER:55419 regarding the mode and manner of the issuance of notice to the drawer of the cheque. It is well settled that at the time of taking cognizance of the complaint under Section 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the aforenoted mandatory statutory procedural requirements have been complied with. It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect. In our opinion, this interpretation of the provision would effectuate the object and purpose for which proviso to Section 138 was enacted, namely, to avoid unnecessary hardship to an honest drawer of a cheque and to provide him an opportunity to make amends."
17. As far as the burden to the accused to rebut the preliminary presumption based on Section 27 of the General Clause Act is concerned, it stands settled in the light of the CRL.REV.PET NO. 865 OF 2023 28 2025:KER:55419 dictum laid down in the above judgment. But if, on the evidence of the complainant itself, it is proved that the notice is served to a third person and there is no explanation for the complainant to the effect that the accused was aware of such serving of notice to the third person, it cannot be said that there is service of notice. Hence, I am not in a position to say that the dictum laid down by this Court in Saju's case (supra) is against the principle laid down by the Apex Court in C.C.Alavi Haji's case (supra) because in Saju's case (supra) this Court was considering the revision against conviction and sentence in which the complainant has no case that the service of notice to a third person/relative of the accused was within the knowledge of the accused. Moreover, Thomas MD's case (supra) judgment was delivered subsequent to C.C. Alavi Haji's case (supra) judgment.
18. Then the learned counsel for the petitioner relied on CRL.REV.PET NO. 865 OF 2023 29 2025:KER:55419 paragraph 17 of C.C. Alavi Haji's case (supra) and submitted that if notice is not received by the accused, he can pay the amount once the summons is received from the court. It will be better to extract paragraph 17 of C.C. Alavi Haji's case (supra), which reads thus :-
"17. It is also to be borne in mind that the requirement of giving of notice is a clear departure from the rule of Criminal Law, where there is no stipulation of giving of a notice before filing a complaint. Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint under S. 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected. 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 S. 138 of the Act, cannot obviously contend that there was no proper service of notice as required under S. 138, by ignoring statutory presumption to the contrary under CRL.REV.PET NO. 865 OF 2023 30 2025:KER:55419 S.27 of the G.C. Act and S. 114 of the Evidence Act. In our view, any other interpretation of the proviso would defeat the very object of the legislation. As observed in Bhaskaran's case (supra), if the 'giving of notice' in the context of Clause (b) of the proviso was the same as the 'receipt of notice' a trickster cheque drawer would get the premium to avoid receiving the notice by adopting different strategies and escape from legal consequences of S. 138 of the Act."
19. The Apex Court was considering a situation where a debt is admitted, and the accused is not getting a chance to pay the debt. In such a situation, the Apex Court observed that once the summons is received, the accused can offer the amount within 15 days of the receipt of the summons and close the case. But, that is not the situation where the debt is disputed and the entire case of the complainant is alleged as false. In such cases, if a pre-condition notice is received, the accused can warn the complainant that the allegation in the complaint is false and if any prosecution is initiated, he will CRL.REV.PET NO. 865 OF 2023 31 2025:KER:55419 take appropriate steps against the complainant. Therefore, in cases where the debt and transaction which leads to the issuance of a cheque is disputed, paragraph 17 of the dictum laid down by the Apex Court is not applicable. That is a situation where the debt is admitted, and the accused is not getting notice before initiating prosecution. Therefore, I am of the considered opinion that the dictum laid down by this Court in Saju's case (supra) is not against the principle laid down by this Court in C.C. Alavi Haji's case (supra).
20. Then the learned counsel relied on the judgment in M/s. Indo Automobiles' case (supra). That was also a case in which the Apex Court was considering a situation in which High Court quashed the proceedings on the ground that no notice was served to the accused. The Apex Court observed that the same is a matter of evidence, and the High Court erred in quashing the proceedings, and it is well settled that CRL.REV.PET NO. 865 OF 2023 32 2025:KER:55419 once notice has been sent by registered post with acknowledgement due at the correct address, it must be presumed that the service has been made effective. That is not the case in Saju's case (supra). Therefore, the dictum laid down in Saju's case (supra) is not against the dictum laid down by the Apex Court in M/s. Indo Automobiles' case (supra).
21. The other decisions relied on by the complainant are the decisions of this Court in Komala Unnikrishnan's case (supra) and Sarath C.'s case (supra). This Court anxiously considered those decisions also. In Sarath C.'s case (supra), this Court was considering the situation where there is evidence to show that the accused was deliberately evading notice and the notice was returned with an endorsement "unclaimed". But, in Saju's case (supra), that is not the situation, and in that case, the complainant admitted that the CRL.REV.PET NO. 865 OF 2023 33 2025:KER:55419 notice was issued to a 3rd person, and there was absolutely no evidence from the side of the complainant to the effect that the accused was aware that the notice was served to the 3rd party. Therefore, I see no contradiction in the dictum laid down by this Court in Saju's case (supra) on one side and the decision of this Court in Sarath C.'s case (supra). It is true that, in Komala Unnikrishnan's case (supra), this court observed that, '....since there is evidence to show that the 1st respondent sent notice to the revision petitioner in her two address, and it was received by somebody attached to her office, may be on authorisation, and no evidence is forthcoming from her side to show that the address was incorrect, or the person who received the notice was not authorised etc, her contention that there was no proper service of notice is liable to be rejected' . With great respect, I cannot agree with the above observation in the light of the dictum of the apex court in Thomas MD's case (supra). If the accused challenges the non-receipt of CRL.REV.PET NO. 865 OF 2023 34 2025:KER:55419 notice, the burden shifts to the complainant to prove at least the knowledge of the notice to the accused. The decision in Thomas MD's case (supra) was not considered in Komala Unnikrishnan's case (supra), and therefore the above observation in Komala Unnikrishnan's case (supra) is per incuriam.
22. In the light of the above discussion, I see no reason to reconsider the dictum laid down by this Court in Saju's case (supra). Now, I will consider the facts in this case. This Court perused the evidence adduced by the complainant, who was examined as PW1. A specific question was put to the complainant in the chief examination to the effect that Ext.P3 is not a legal notice and the same was not received by the accused. He indeed denied the same, but Ext.P5 is the postal acknowledgement card. As per the postal acknowledgement card, notice is received by one 'Amina'. The complainant in CRL.REV.PET NO. 865 OF 2023 35 2025:KER:55419 the re-examination deposed that Ext.P3 notice was sent to the correct address of the accused, and in Ext.P5, the notice was received by the mother of the accused, who is 'Amina'.
23. But in the further cross-examination by the accused, PW1 denied the suggestion that 'Amina' is the sister of PW1. But, she only states that notice was sent, and she has no case that the accused is aware of the receipt of notice by 'Amina'. Unless there is evidence to show that the accused is aware of the notice sent by the complainant, this Court cannot conclude that notice is served to the accused. I can understand if PW1 deposed that even though notice is served to 'Amina', the accused is aware of the same, the burden shifts back to the accused to prove that he was not aware. But there is no such case to the complainant that the accused was aware of the receipt of notice by 'Amina'. It is proved beyond reasonable doubt, in the light of Ext.P5, that 'Amina' received the notice. CRL.REV.PET NO. 865 OF 2023 36
2025:KER:55419 In such circumstances, I am of the considered opinion that there is no service of notice to the accused, and it is served to another person and there is no evidence to show that the accused was aware of the service of notice to the 3 rd person. In the light of the same, the principle laid down by this Court in Saju's case (supra) is squarely applicable in this case also.
24. The upshot of the above discussion is that the conviction and sentence imposed on the revision petitioner are to be set aside.
Therefore, this Criminal Revision Petition is allowed. The conviction and sentence imposed on the revision petitioner as per the judgment dated 16.02.2023 in Crl.Appeal No.175 of 2019 of the Court of Third Additional District and Sessions Judge, Palakkad and the judgment dated 10.07.2019 in S.T. No.114 of 2017 of the Court of Judicial First Class Magistrate II, Alathur are set aside. The revision petitioner is acquitted. CRL.REV.PET NO. 865 OF 2023 37
2025:KER:55419 If any amount is deposited by the revision petitioner as per the interim order passed by this Court or the appellate court, the same should be returned to the Revision Petitioner forthwith.
sd/-
P.V.KUNHIKRISHNAN JUDGE nvj SSG SKS JV jvt DM