The Allahabad High Court recently In the case of Rajendra v. State of UP And Another held that a notice sent through email or WhatsApp would be a valid demand notice in cheque bounce cases under the Negotiable Instruments (NI) Act if requirements under the Information Technology Act (IT Act) are fulfilled.
Justice Arun Kumar Singh Deshwal clarified that while Section 138 of the NI Act mandates the provision of notice in writing, it does not specify the method by which the notice should be sent.
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 Observed
The Court proceeded to analyze the clauses of the IT Act, which stipulate that if any statute requires information to be in written, typewritten, or printed form, it shall be deemed fulfilled if provided in electronic format. The Court specifically cited Section 4 of the IT Act.
In the above context, the Court observed that notice under Section 138 NI Act will also include email or WhatsApp “if the same remains available for subsequent reference”.
Additionally, the Court noted that Section 65(B) of the Indian Evidence Act acknowledges the admissibility of electronic records, and the provisions of the IT Act outline the procedure for acknowledging the receipt of notice in electronic form.
Specifically, the Court cited Section 13 of the IT Act, which outlines the procedure for determining the time and place of dispatch and receipt of electronic records.
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 Held
The Court rendered its decision during a hearing concerning an application seeking the dismissal of summons and the entire proceedings associated with a complaint case under Section 138 of the NI Act.
The case involved a dispute regarding the date of service of notice. The Court examined whether the law necessitates the inclusion of the date of service of notice in the complaint filed under Section 138 of the NI Act.
After reviewing precedents concerning notices sent via registered post, the Court determined that in cases where no date of service is specified, it can be inferred that the notice was served within the prescribed time if the letter was delivered.
Subsequently, the Court deliberated on the presumed time for the delivery of a letter in the ordinary course of business. It referenced a Supreme Court judgment stating that ordinarily, a period of 30 days should be considered 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 Held
In this context, the Court remarked that the speed of letter delivery facilitated by the postal department has significantly increased, making the presumption of a 30-day delivery period for registered post seem inaccurate.
Given the advancements in digitization and computerization, postal delivery has become so efficient that the Court can reasonably assume that a properly addressed registered post has been received by the intended recipient within a maximum timeframe of 10 days if the date of service is not specified in the complaint, as stated by Justice Deshwal.
Furthermore, the Court acknowledged the implementation of an online post tracking system, which makes it easy to ascertain the delivery date of a registered post. In the typical course of operations, letters are typically 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
Regarding the necessity of mentioning the date of service of notice in the complaint, the Court determined that there is no legal obligation to do so when the notice is dispatched via registered post.
In the case at hand, the Court observed that the complainant sent the notice on July 23, 2022. Therefore, after presuming a ten-day period for service, the subsequent 15 days for the purpose of fulfilling the demanded payment would be counted from August 2, 2022.
Given that the complaint was filed on August 31, 2022, the Court concluded that it was not defective and declined to quash the summoning order.
The Court also issued directives to Magistrates handling NI Act cases:
(i) Magistrates/Courts handling NI Act complaints should prioritize including the post tracking report along with the complaint if it was sent via Registered Post. This ensures that the drawer of the cheque cannot claim non-service of the statutory notice of 15 days.
(ii) Notices sent via email or WhatsApp, provided they meet the requirements of Section 13 of the IT Act, will also be considered valid notices under Section 138 of the NI Act to the drawer of the cheque. Such notices will be deemed served on the date of dispatch.
The Court instructed the Registrar (Compliance) to distribute a copy of the judgment to all District Judges in the State.
Advocates Sunil Kumar, Chandan Singh, and Narendra Singh represented the applicant, while Advocate Padmakar Rai represented the State.
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