Demand Notice Sent to Cheque Drawer Via Email/WhatsApp is Valid: Allahabad High Court

The Hon’ble Allahabad High Court in the matter of Rajendra v. State of U.P. & Anr. whereby an application u/s 482 Cr.P.C. was filed seeking quashing of proceedings under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”), held that a demand notice sent to the drawer of a cheque through ‘Email or WhatsApp‘ under Section 138 of NI Act for the dishonour of a cheque, is a valid notice and the same shall be deemed to be dispatched and served on the same date if it fulfils the requirement of Section 13 of the Information Technology Act, 2000 (“IT Act”).

Section 13 of the IT Act stipulates that once an electronic notice is entered into a computer resource beyond the sender’s control, it is considered dispatched. Similarly, when the electronic notice enters the designated computer resource or the recipient’s computer resources, it is deemed to be served. Further, Section 12 of the IT Act also provides the procedure for acknowledgement of receipt of notice in electronic form.

The Hon’ble Court reached the above conclusion by interpreting proviso (b) of Section 138 of the NI Act, that while this provision requires notice in writing, it doesn’t specify any particular mode for sending the same. Even upon considering Section 94 of the NI Act, it could not be inferred that notice must exclusively be sent by post.

In this backdrop, referring to Section 4 of the IT Act which recognises electronic records, the Court concluded that Section 138 NI Act Notice will also include ‘Email or WhatsApp’ if the same remains available for subsequent reference. In this regard, the Court also referred to Section 65(B) of the Indian Evidence Act, 1972 which accepts the admissibility of electronic records.

In the same case, the Hon’ble Court also laid down that there is no legal requirement to mention the date of service of notice upon the drawer of the cheque in the Complaint itself, if the notice was sent through registered post, then presumption under Section 27 of the General Clauses Act, that notice would have been served within ten (10) days from the date of its dispatch, shall apply. Though it is always open for the drawer of the cheque to take the plea during trial that the notice was never served upon him.