On 30 September 2026 the Supreme Court did something it does rarely and never lightly: it declared one of its own judgments per incuriam.
In Sainaba v. State of Kerala, 2026 INSC 1069, the Court held that M.D. Thomas v. P.S. Jaleel, (2009) 14 SCC 398 — which for seventeen years has been cited to acquit drawers whose statutory notice was taken in by a family member — was decided in ignorance of a binding three-Judge Bench, is not good law, and cannot be relied on under Article 141.
The reports are leading with the proposition that a notice delivered at the drawer’s correct address is validly served even if a relative signs for it. That is right, but it is the smaller half. Three things about this judgment have gone unreported, and the last of them will matter to every notice you send from now on.
The case at a glance
| Case | Sainaba v. State of Kerala & Anr. |
| Neutral citation | 2026 INSC 1069 |
| Proceeding | Criminal Appeal arising out of SLP (Crl.) No. 17180 of 2025 |
| Bench | Ahsanuddin Amanullah and Manmohan, JJ. — judgment delivered by Manmohan, J. |
| Date | 30 September 2026 · Reportable · 37 paragraphs |
| Impugned | Judgment dated 29 July 2025 of the Kerala High Court in Crl. R.P. No. 865 of 2023 |
| Provisions | Section 138 and proviso (b), Negotiable Instruments Act, 1881; Section 27, General Clauses Act, 1897; Section 114, Indian Evidence Act, 1872 |
| Result | Appeal allowed. High Court set aside. Conviction and sentence of the Trial Court restored — six months’ simple imprisonment and a fine of ₹3,00,000 |
| Also held | M.D. Thomas v. P.S. Jaleel, (2009) 14 SCC 398, is per incuriam |
Read the judgment
What happened
The respondent borrowed ₹3,00,000 from the appellant and issued a cheque drawn on the Catholic Syrian Bank, Perumbavoor branch. It was dishonoured. The appellant sent the statutory demand notice by registered post on 31 August 2016 to the respondent’s correct address. His mother received it. He neither paid nor replied.
| Court | Outcome |
|---|---|
| Trial Court, 10 July 2019 | Convicted. Six months’ simple imprisonment and a fine of ₹3,00,000. “By sending lawyer notice in the correct address of the accused complainant has complied with the mandatory requirement.” |
| Additional District and Sessions Judge, 16 February 2023 | Appeal dismissed. The accused had never challenged the correctness of the address, not even in his statement under Section 313 |
| Kerala High Court, 29 July 2025 | Revision allowed; acquitted. “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” |
| Supreme Court, 30 September 2026 | High Court set aside; conviction restored |
A detail worth noticing: in his statement under Section 313 of the Code (now Section 351 of the Bharatiya Nagarik Suraksha Sanhita, 2023), the accused said he had borrowed ₹7,00,000 in all and repaid it, and that he had handed over a blank signed cheque. He did not say the address was wrong. He did not say he was estranged from his mother. He did not say they lived apart. And before the Supreme Court, served with notice, he did not appear at all.
The settled line the High Court departed from
Three decisions had already answered this.
| Case | What it decided |
|---|---|
| K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510 | “Giving” notice is not the same as “receiving” it. “Giving was the process of which the receipt was the accomplishment.” A notice returned unclaimed is deemed served. Otherwise “a trickster cheque drawer would get the premium to avoid receiving the notice” |
| D. Vinod Shivappa v. Nanda Belliappa, (2006) 6 SCC 456 | The same where the premises were locked or the addressee absent. If every instance of non-availability defeated service, the object of the statute would fail |
| C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 — three Judges | On a reference from a Division Bench. There is no material difference between Section 27 of the General Clauses Act and Section 114 of the Evidence Act. Once the notice is correctly addressed and posted, proviso (b) is satisfied. “It is then for the drawer to rebut the presumption…” |
So the burden sits on the drawer, and it sits there whether the notice comes back unclaimed, comes back refused, or arrives and is signed for by somebody else.
Why M.D. Thomas could not stand
In 2009 a two-Judge Bench in M.D. Thomas set aside a Section 138 conviction for one reason: the notice had been served on the drawer’s wife. The judgment is very short. It does not ask whether the notice was correctly addressed. It does not ask whether the wife lived with the drawer. And it does not mention C.C. Alavi Haji, decided by three Judges twenty-three months earlier on precisely this question.
The Supreme Court’s criticism is blunt. The Bench in M.D. Thomas “erroneously treated the wife of the drawer as equivalent to an unrelated third party”. And then comes the sentence that does the work — paragraph 28:
“By virtue of the decisions in K. Bhaskaran, D. Vinod Shivappa and C.C. Alavi Haji, the complainant enjoys the presumption of valid service where the notice is dispatched to the correct address but not delivered at all. However, under M.D. Thomas, a complainant whose notice is actually delivered but received by a family member residing at the same address would be denied the benefit of such presumption!”
That is the whole case in one sentence. A payee whose notice vanishes into the post is better off than a payee whose notice arrives. The exclamation mark is the Court’s own.
And the High Court had misread the very judgment it relied on
The Kerala High Court recorded that in C.C. Alavi Haji “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… the Court shall presume service”.
C.C. Alavi Haji says the opposite. It holds that it is unnecessary for the complainant to aver deliberate evasion, and that the burden is the drawer’s. The Supreme Court calls the impugned judgment “a complete misreading” and says the High Court “wrongly shifted the burden from the accused-drawer to the complainant”.
Three things the reports have missed
1. This is not the first court to call M.D. Thomas per incuriam
It is the first Supreme Court decision to do so. But the High Court of Sikkim reached the identical conclusion by the identical route more than six years ago.
In Sancha Bahadur Subba v. Ramesh Sharma (Crl. A. Nos. 33, 34 and 35 of 2018, decided 5 March 2020), Meenakshi Madan Rai, J. held in terms that “the ratio in M.D. Thomas of a two Judge Bench of the Hon’ble Supreme Court, it may respectfully be stated is per incuriam in view of a prior decision of a three Judge Bench in C.C. Alavi Haji on the same aspect”. The facts were on all fours and then some: the notices had been received by the accused’s brother in two matters and his father in the third. The High Court convicted.
Sancha Bahadur Subba does not appear among the authorities in Sainaba. The Court seems not to have been told of it. That takes nothing away from the result — but a judge of a small High Court saw the conflict, named it correctly and acted on it in 2020, and the record should say so.
2. M.D. Thomas was being applied as good law three months ago
On 18 June 2026 the Tripura High Court, in Sri Sonatan Murasingh v. Smt. Tinku Sarkar (2026:THC:757), quashed a Section 138 conviction because the demand notice had been received by the accused’s son. It applied M.D. Thomas. It did not cite C.C. Alavi Haji at all.
That is the mischief Sainaba was correcting, still operating fifteen weeks before it was corrected. The High Courts were split and the split was live:
| Service held valid | Service held invalid |
|---|---|
| Sikkim — Sancha Bahadur Subba (2020), brother and father; M.D. Thomas held per incuriam | Tripura — Sonatan Murasingh (June 2026), son; M.D. Thomas applied |
| Karnataka — Venkatesh Prasad v. Subray V. Bhat (2014), brother; felt bound by M.D. Thomas but upheld conviction on a parallel despatch | Telangana — Binjusaria Metal Box (February 2025), acknowledgment signed by a third person; acquittal upheld |
If you have a Section 138 matter in which an acquittal was founded on M.D. Thomas and limitation has not run out, this judgment is worth looking at today.
3. Section 27 of the General Clauses Act was amended last December
This is the point with the longest reach, and no report of the judgment mentions it.
The whole presumption rests on Section 27 of the General Clauses Act, 1897, which the judgment quotes in the form it has had since 1897: service is deemed effected by “properly addressing, pre-paying and posting by registered post”.
That is no longer what Section 27 says. By the Repealing and Amending Act, 2025 (Act 37 of 2025), Second Schedule, assented to on 20 December 2025:
“In section 27, for the words ‘registered post’, the words ‘speed post with registration’ shall be substituted.”
The notice in Sainaba went out on 31 August 2016, so the unamended text governed and the Court was right to quote it as it did. But for every demand notice dispatched on or after 20 December 2025, the statutory presumption in Section 27 attaches to speed post with registration.
Registered post and speed post with registration are different products of the Department of Posts. So a question now arises that did not arise before: does the Section 27 presumption still attach to a notice sent by ordinary registered post with acknowledgement due — which is how almost every Section 138 notice in this country is sent?
There is a good answer, and it is in C.C. Alavi Haji itself: the Court there held there is “no material difference” between Section 27 of the General Clauses Act and Section 114 of the Evidence Act (now Section 119 of the Bharatiya Sakshya Adhiniyam, 2023), and the presumption under the latter is not tied to any particular postal product. A payee who uses registered post should therefore still have a presumption available. But that is an argument, not a settled position, and it has not yet been tested.
Until it is, the prudent course is obvious. Send the statutory demand notice by speed post with registration, so that Section 27 applies on its own terms. Send a second copy by registered post with acknowledgement due, and a third by email or courier if you have the address. The cost of doing all three is trivial against the cost of arguing about it.
A note on the authority the Court used
For the doctrine of per incuriam the judgment relies on State of U.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139 — itself a two-Judge decision, and one principally concerned with sub silentio.
Stronger authority was available and is not cited. National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, a Constitution Bench, holds that “a decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-equal or larger Bench”. And Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673, another Constitution Bench, draws the line that matters here: a co-equal Bench that merely doubts an earlier decision must refer it to a larger Bench, whereas a decision irreconcilable with binding larger-Bench authority is per incuriam and may be set aside there and then.
That distinction is worth holding on to, because it is the one students and juniors most often get wrong. Sainaba did not disagree with M.D. Thomas; had it merely disagreed, it would have had to refer the question. It held that M.D. Thomas could not be reconciled with a three-Judge Bench it had never been shown. That is a different thing, and only that difference made it permissible for two Judges to do what they did.
The result is right. The authority base was thinner than it needed to be.
For the practitioner
If you act for the payee:
- Address the notice to the address on the cheque, in the agreement, or in the bank record, and keep proof of what you relied on. Everything turns on the address being correct; nothing turns on who signs for it.
- Use speed post with registration for notices sent after 20 December 2025, and a registered-post copy as well. See the point above.
- Plead the mode and manner of dispatch in the complaint. C.C. Alavi Haji requires “basic facts regarding the mode and manner of the issuance of notice”.
- If the accused takes the family-member point, Sainaba is now a complete answer — and so, if you need a High Court judgment on the same reasoning that predates it, is Sancha Bahadur Subba.
If you act for the drawer:
- The family-member point is gone. What survives is the list in C.C. Alavi Haji: the address was wrong, the letter was never tendered, the postman’s report is incorrect, or the drawer had no knowledge that the notice was brought to his address.
- If you are running estrangement or separate residence, put it on record early — in the reply, in the plea, and in the Section 313 statement. Sainaba turns partly on the fact that it “was not even his case that his relationship with his mother was inimical or that they resided separately”.
- Remember the escape route C.C. Alavi Haji leaves open: a drawer who genuinely did not receive the notice may pay the cheque amount within fifteen days of receiving the summons and ask that the complaint be rejected. A drawer who does not do that cannot afterwards complain of want of service.
- Do not accept the address silently. Every pleading in which you adopt it — the vakalatnama, the appeal, the revision — is evidence against you. That is precisely how it went in this case.
What this judgment does not decide
- Whether service on a person at the correct address who is not a member of the household — a neighbour, a watchman, a stranger — attracts the presumption. The reasoning points that way, since the Court says the presumption arises “irrespective of the identity of the recipient”, but the facts concerned a mother living with her son.
- The effect of the December 2025 amendment to Section 27 on notices sent by registered post. The judgment did not have to consider it.
- Whether the High Court exceeded its revisional jurisdiction under Section 397 of the Code (now Section 438 BNSS) by re-appreciating evidence. The appellant argued it; the Court decided on the merits instead.
- Anything about the merits of the defence that the cheque was a blank signed cheque given against a debt since repaid. Those findings were concurrent and were restored, not re-examined.
Cases referred
| Case | Citation | Treatment |
|---|---|---|
| K. Bhaskaran v. Sankaran Vaidhyan Balan | (1999) 7 SCC 510 | Followed; paras 24–25 extracted |
| D. Vinod Shivappa v. Nanda Belliappa | (2006) 6 SCC 456 | Followed; paras 17–18 extracted |
| C.C. Alavi Haji v. Palapetty Muhammed | (2007) 6 SCC 555 (three Judges) | Followed; paras 15 and 17 extracted — the controlling authority |
| Madan & Co. v. Wazir Jaivir Chand | (1989) 1 SCC 264 | Cited by the appellant |
| Subodh S. Salaskar v. Jayprakash M. Shah | (2008) 13 SCC 689 | Cited by the appellant |
| M.D. Thomas v. P.S. Jaleel | (2009) 14 SCC 398 | Held per incuriam; not binding under Article 141 |
| State of U.P. v. Synthetics and Chemicals Ltd. | (1991) 4 SCC 139 | Relied on for the doctrine of per incuriam |
Discussed in this commentary but not referred to in the judgment: Sancha Bahadur Subba v. Ramesh Sharma, High Court of Sikkim, 5 March 2020; Sri Sonatan Murasingh v. Smt. Tinku Sarkar, High Court of Tripura, 18 June 2026 (2026:THC:757); Venkatesh Prasad v. Subray V. Bhat, High Court of Karnataka, 21 March 2014; National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680; Central Board of Dawoodi Bohra Community v. State of Maharashtra, (2005) 2 SCC 673; Government of A.P. v. B. Satyanarayana Rao, (2000) 4 SCC 262; and M/s Ajeet Seeds Ltd. v. K. Gopala Krishnaiah, (2014) 12 SCC 685.
Legislation considered
| Instrument | Provisions | Position under the new codes |
|---|---|---|
| Negotiable Instruments Act, 1881 | Section 138 with provisos (a), (b) and (c) and the Explanation | Unchanged. The Act was not repealed or amended by the new criminal codes, and Section 142 carries its own non obstante clause |
| General Clauses Act, 1897 | Section 27 | Amended by the Repealing and Amending Act, 2025 (Act 37 of 2025), Second Schedule, with effect from 20 December 2025: “registered post” becomes “speed post with registration” |
| Indian Evidence Act, 1872 | Section 114 | Now Section 119, Bharatiya Sakshya Adhiniyam, 2023 |
| Code of Criminal Procedure, 1973 | Section 313 (examination of the accused); Section 397 (revision) | Now Section 351 and Section 438, Bharatiya Nagarik Suraksha Sanhita, 2023 |
| Constitution of India | Article 141 | — |
Disclaimer: This post is a commentary prepared for information and study. It is not legal advice and no lawyer-client relationship arises from reading it. The text of the judgment is in the public domain under Section 52(1)(q) of the Copyright Act, 1957; the analysis, arrangement and headnote are original to Lawizard. The observations about the December 2025 amendment to Section 27 of the General Clauses Act, and about its effect on notices sent by registered post, are this writer’s own and have not been considered by any court. Verify against the judgment and the amended statute before citing.
Sources: the judgment of the Supreme Court of India dated 30 September 2026 in Sainaba v. State of Kerala & Anr., 2026 INSC 1069; the Repealing and Amending Act, 2025 (Act 37 of 2025) as published on indiacode.nic.in; the decisions of the High Courts of Sikkim, Tripura, Karnataka and Telangana referred to above; and the report published by LiveLaw.
