Proving the Section 138 Cheque-Bounce Demand Notice Was Served: 'Unclaimed'/'Refused' Returns, the Section 27 Presumption, and Using a Photocopy as Secondary Evidence (2026)

If you sent the Section 138 demand notice by registered post (RPAD) to the drawer's correct address, the law presumes it was served even if it comes back marked 'unclaimed', 'refused', 'addressee not in station' or 'house locked' — you do not have to prove actual receipt. The presumption flows from Section 27 of the General Clauses Act, 1897 read with the court's power to presume facts under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), and the burden shifts to the drawer to prove genuine non-service. If you have lost the original postal receipt, you can still prove dispatch by filing a photocopy as secondary evidence under BSA Sections 58 and 60 with a short application explaining the loss. Keep the postal receipt, the tracking/AD card and the returned envelope with its endorsement — those three documents are what carry a cheque-bounce complaint on the question of notice.

A Section 138 demand notice sent by registered post to the drawer's correct address is deemed served on the drawer even if it is returned 'unclaimed' or 'refused', unless the drawer proves the letter was never really delivered and that he was not responsible for the non-service.

This matters because service of the demand notice is not a formality — it is a condition precedent to the offence. Under the proviso to Section 138 of the Negotiable Instruments Act, 1881, the payee must make a written demand within 30 days of receiving the bank's cheque-return memo, and the drawer gets 15 days from receipt of that notice to pay; the offence is complete only when the 15 days lapse without payment. If service can be knocked out, the whole complaint falls. That is why drawers so often plead 'I never got the notice' — and why you must know exactly how the presumption works.

What counts as valid service of the demand notice

Section 138 does not prescribe a single mode of service. Courts have accepted several, but they are not equal in evidentiary weight:

Best practice: always send the statutory notice by RPAD or Speed Post to the correct address, and keep a copy of the signed notice itself. Electronic modes are useful belt-and-braces, but the physical registered-post trail is what triggers the deemed-service presumption. This is the same discipline the Section 138 demand notice page walks through on how to draft and dispatch a defect-free notice in the first place.

What if the notice comes back 'unclaimed', 'refused' or 'not available'?

This is the most litigated point, and it is settled in the payee's favour. In Ajeet Seeds Ltd v. K. Gopala Krishnaiah, (2014) 12 SCC 685 (indiankanoon.org/doc/88683455/), the Supreme Court held that when a notice sent by registered post is returned with a postal endorsement 'refused', 'not available in the house', 'house locked', 'shop closed' or 'addressee not in station', due service has to be presumed. The Court went further: the complaint need only state that the notice was sent by registered post to the drawer's correct address — it is unnecessary to additionally plead that, despite return, the notice is deemed served.

A postal endorsement of 'refused' or 'unclaimed' on a registered letter sent to the correct address is treated as good service, not as failure of service.

The foundational authority is C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 (indiankanoon.org/doc/272690/). A three-judge bench held that Section 27 of the General Clauses Act raises a presumption of service when notice is correctly addressed and posted, and that a drawer who genuinely did not receive it has a built-in safety valve: if he pays the cheque amount within 15 days of receiving the court summons, he can avoid conviction — so a drawer who claims non-receipt but does not pay after being summoned cannot complain of prejudice. That single holding defeats most 'I never got the notice' defences.

What if I lost the postal receipt — can I use a photocopy?

Yes. A photocopy or scan is secondary evidence, and Indian evidence law expressly allows secondary evidence of a document when the original is lost or destroyed. Under the Bharatiya Sakshya Adhiniyam, 2023 (which replaced the Indian Evidence Act, 1872 from 1 July 2024), Section 58 defines secondary evidence to include certified copies and photocopies, and Section 60 lists the situations in which secondary evidence may be led — including where the original has been lost or is not in the party's possession (indiacode.nic.in, BSA 2023).

The practical step is to move a short application before the Magistrate stating that the original registered-post receipt was lost despite a bona fide search, and seeking leave to bring the photocopy on record as secondary evidence. High Courts have upheld Section 138 complaints proved through a photocopy of the postal receipt where the loss of the original was explained. The lost original does not sink the complaint; an unexplained gap in the dispatch trail does. Preserve the returned envelope even more carefully than the receipt — the endorsement on it is often the single most persuasive document on service.

What must the complaint actually say about notice?

Drafting the complaint correctly is half the battle. The averments should, at minimum: (a) give the date of the cheque-return memo and confirm the demand was made within 30 days of it; (b) state that the notice was sent by RPAD/Speed Post to the drawer's correct address, with the receipt number; (c) exhibit the notice, the postal receipt and the returned envelope/AD card; and (d) plead that the 15-day payment period expired without payment. Because Ajeet Seeds holds these facts are enough, a bare, well-pleaded dispatch averment survives a quashing petition — whether the notice was actually received is then a matter of trial evidence, not a ground to throw the complaint out at the threshold.

Timeline and limitation — don't lose the case on the calendar

Service interacts tightly with limitation. The cause of action arises on the 16th day after the notice is deemed served (i.e., after the 15-day payment window lapses), and the complaint must be filed within one month of that date under Section 142(1)(b) NI Act; a delayed complaint needs a condonation application with sufficient cause. Get the deemed-service date wrong and you may either file prematurely (no cause of action yet) or too late (time-barred). The full sequence — dishonour memo, 30-day notice, 15-day wait, one-month filing window — is mapped on the cheque bounce Section 138 procedure and time-limits guide, the hub page for this topic.

When you can do this yourself vs. when to brief an advocate

Sending the notice, preserving the postal trail and computing the deadlines are well within a diligent litigant's reach. Bring in an advocate once the drawer files a reply disputing service, raises a secondary-evidence objection, or the matter goes to cross-examination on the postman/dispatch clerk — that is where the presumption is won or lost on facts. A drawer who wants to contest should read the reply to a Section 138 notice guide to see exactly what a well-drafted rebuttal must establish.

Frequently Asked Questions

Is a Section 138 notice deemed served if it is returned 'unclaimed'?

Yes. When a demand notice sent by registered post to the drawer's correct address is returned marked 'unclaimed', 'refused', 'house locked' or 'addressee not in station', service is presumed under Section 27 of the General Clauses Act, as held in Ajeet Seeds Ltd v. K. Gopala Krishnaiah, (2014) 12 SCC 685. The drawer must prove genuine non-service to rebut it.

Can I file a Section 138 complaint using a photocopy of the postal receipt?

Yes, if the original is lost. A photocopy is secondary evidence under Sections 58 and 60 of the Bharatiya Sakshya Adhiniyam, 2023. Move an application before the Magistrate explaining that the original receipt was lost despite a bona fide search and seek leave to bring the photocopy on record. Courts have sustained complaints proved this way.

What if the drawer says he never received the notice?

Under C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, a drawer who genuinely did not receive the notice can still avoid conviction only by paying the cheque amount within 15 days of receiving the court summons. If he is summoned, does not pay, yet insists he never got the notice, the presumption of service stands and the defence usually fails.

How many days do I have to send the notice and then file the case?

Send the written demand within 30 days of receiving the bank's cheque-return memo. The drawer then has 15 days from receipt to pay. If he does not, the cause of action arises on the 16th day, and you must file the complaint within one month of that date under Section 142(1)(b) of the NI Act.

Is email or WhatsApp notice valid for Section 138?

Several High Courts have accepted email and WhatsApp as valid modes of the demand notice, provided delivery can be shown. However, they are best used as supplementary proof — always send the statutory notice by registered post or speed post as well, because the registered-post trail is what attracts the deemed-service presumption.

How Urava helps

Urava turns a cheque-bounce situation into a court-ready, citation-verified research memo in about ten minutes — on WhatsApp, from a typed question or a scanned notice or bank memo in English, Hindi or Malayalam. Ask it 'my Section 138 notice came back unclaimed, is that good service?' and you get a structured answer grounded in Section 27 of the General Clauses Act, the BSA secondary-evidence provisions and the governing Supreme Court authority — every citation checked against the primary source, not free-recalled. Junior advocates, litigants-in-person and law students use it to draft the demand notice, compute the 30/15/30-day timeline and build the service-proof record before filing. Start free (3 researches) at https://urava.app/register.