Demand notice sent through email or WhatsApp valid in cheque dishonor cases: Allahabad High Court

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The Allahabad High Court recently held that a notice sent through email or WhatsApp would be a valid demand notice in cheque bounce cases under Negotiable Instruments (NI) Act if it fulfils the requirements under the Information Technology Act (IT Act) [Rajendra v. State of UP And Another]
Justice Arun Kumar Singh Deshwal explained that Section 138 of the NI Act provides for giving of notice in writing but does not mention about the mode of sending of notice.

“… but Section 94 of N.I. Act provides that notice of dishonour may be given oral or written and may, if written, be sent by post. But this section does not mandatorily provide that written notice should be sent only by post,” the Court said.

The Court then went on to examine the provisions of IT Act which state that where any law provides that information shall be in writing or in typewritten or printed form, then such requirement shall be deemed to have been satisfied if such information is given in electronic form.

The Court in particular referred to Section 4 of the IT Act.

Section 4, IT Act
In this backdrop, the Court held that notice under Section 138 NI Act will also include email or WhatsApp “if the same remains available for subsequent reference”.

The Court also said that Section 65(B) of the Indian Evidence Act also accepts the admissibility of electronic records and provisions of IT Act provide the procedure for acknowledgement of receipt of notice in the electronic form.

In particular, the Court referred to Section 13 of the IT Act which details the procedure for time and place of dispatch and receipt of the electronic record.

“It is clear that notice sent through ’email or WhatsApp’ shall be deemed to be dispatched and served on the same date, if it fulfill the above requirement of Section 13 of I.T. Act, 2000,” the Court said.

The Court gave the findings while hearing an application seeking quashing of summons and entire proceedings related to a complaint case under Section 138 of the NI Act.

There was a dispute related to the date of service of notice in the case. The Court analysed whether the law requires that date of service of notice be mentioned in the complaint filed under Section 138 of NI Act.

After examining the rulings regarding notice sent through registered post, the Court found that it has been held that when no date of service is mentioned, it can be presumed that notice has been served within the time prescribed if the letter stands delivered.

The Court then considered what would be time that can be presumed for delivery of a letter in the ordinary course of business. It found a Supreme Court judgment which mentioned that ordinarily 30 days must be held to be sufficient. 

“The above judgement of the Hon’ble Supreme Court was delivered in the year 2008 considering the efficiency of service of the post office at that time. Even Hon’ble Apex Court has not presumed that 30 days will always be counted for service of notice if the same is sent through registered post and is not returned,” the Court said.

In this backdrop, the Court observed that delivery of letters through the postal department has become so fast that presuming 30 days for service delivery for the registered post does not appear correct.

In the era of digitisation and computerisation, delivery of post has become so fast that the court can presume that a correctly addressed registered post has been served upon the addressee within a maximum period of 10 days if the date of service is not mentioned in the complaint, Justice Deshwal said.

The Court noted that with the initiation of an online post tracking system, it is too easy to know the date of delivery of a registered post. In the ordinary course of business, the letter is delivered within 3-10 days, it added.

“Therefore, this Court holds that if no date of service has been mentioned in the complaint, then the court can presume under Section 114 of the Evidence Act and Section 27 of the General Clause Act that notice would have been served within ten days from the date of its dispatch. Though it is always open to the drawer of the cheque to take the plea during trial, the notice was never served upon him,” it held.

On whether date of service of notice is required to be mentioned in the complaint, the Court held that there was no such legal requirement if the notice is sent through a registered post.

In the present case, the Court noted that the notice was dispatched by complainant on July 23, 2022 and therefore after presuming the ten days of service, 15 days for the purpose of making the demanded payment will be counted from August 2, 2022.

Since the complaint was filed on August 31, 2022, the Court thus held that it was not defective and refused to quash the summoning order.

The Court also issued following directions to the Magistrates dealing with NI Act cases:

(i) Where complaint under NI Act is filed, then the concerned Magistrate/ Court will lay emphasis on filing the post tracking report along with the complaint if sent through Registered Post, so as to leave no scope for the dishonest drawer of cheque from taking the plea of non-service of statutory notice of 15 days.

(ii) Notice sent through ’email or WhatsApp’ , if it fulfils the requirement of Section 13 of IT Act will also be a valid notice under Section 138 NI. Act to the drawer of cheque, and same will be deemed to be served on the date of dispatch, itself.

The Court directed the Registrar (Compliance) to circulate a copy of the judgment to all the District Judges in the State.

Advocate Sunil Kumar, Chandan Singh and Narendra Singh represented the applicant.

Advocate Padmakar Rai represented the State.

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