The Kerala High Court has ruled that serving legal notice under Section 138 of the Negotiable Instruments Act, 1881, to a relative of the accused does not fulfill the legal requirement unless it is proven that the accused was aware of the notice. This significant judgment came in the case Saju v. Shalimar Hardwares and Ors (Crl. Rev. Pet. No. 1015 of 2024), where Justice P.V. Kunhikrishnan presided over the matter.
The dispute arose from a cheque for ₹92,500 issued by Saju, the accused, to Shalimar Hardwares in March 2019 for the purchase of construction materials. The cheque was dishonoured due to insufficient funds. As mandated under the law, the complainant issued a statutory notice dated April 27, 2019. However, the notice was received not by Saju himself but by a relative.
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“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,” observed Justice P.V. Kunhikrishnan.
“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 trial court had earlier convicted Saju and sentenced him to three months of simple imprisonment along with compensation under Section 357(3) CrPC. The appellate court reduced the imprisonment to one month but upheld the conviction. Saju filed a revision petition before the High Court challenging the legality of the notice service.
Advocate Manjusha K, appearing for the petitioner, argued that there was no valid service of notice, as required under Section 138(b). During cross-examination, it was confirmed that the complainant had no proof the accused was aware of the notice received by the relative.
“There is no case for the complainant that the accused had knowledge of the receipt of the notice by his relative. Hence, there is no constructive service of notice either,” the Court noted.
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The Court also cited the Supreme Court’s judgment in Thomas M.D. v. P.S. Jaleel (2009), where it held that notice served on the wife of the accused was insufficient for compliance with Section 138(b).
In conclusion, the Kerala High Court allowed the revision petition and acquitted Saju. The court also ordered a refund of any amount deposited by him during the trial or appeal proceedings.
Case Title - Saju v Shalimar Hardwares and Ors
Case No - Crl. Rev. Pet. 1015/ 2024
Counsel for Petitioner - Manjusha K, M T Sureshkumar, Sreelakshmi Babu
Counsel for Respondent - Hrithwik CS- Public Prosecutor