by Introduction
In cases of cheque dishonor under Section 138 of the Negotiable Instruments Act, 1881, proper service of summons is crucial to ensure that the accused is aware of the proceedings and has an opportunity to respond. The method of serving summons can significantly impact the progress of the case. This blog delves into whether summons can be served by mail or WhatsApp, the legal procedures involved, and the requirements for each method as outlined by the Supreme Court and High Courts.
Legal Methods of Serving Summons
Traditional Methods
a. By Post or Courier
Traditionally, summons are served by registered post or approved courier services. This method ensures that there is a physical record of delivery, which can be crucial for legal processes.
b. By Court Bailiff or Police
Summons can also be served personally by a court bailiff or the police. This method is often preferred for its reliability and the certainty of proof of service.
c. Publication in Newspapers
If the whereabouts of the accused are unknown, the court may order the summons to be published in newspapers. This is a last resort when other methods have failed.
Modern Methods of Service
1. Service by Mail
a. Supreme Court Guidelines
The Supreme Court has acknowledged the use of postal services for serving summons. In the case of K.K. Verma v. Union of India (2005), the Court recognized that service by registered post is legally valid, provided there is proof of receipt.
b. Legal Procedure
- Sending the Summons: The complainant must send the summons by registered post or speed post to the address provided for the accused.
- Proof of Delivery: It is essential to obtain proof of delivery from the postal authorities, such as an acknowledgment receipt or delivery confirmation.
- Filing Proof: The complainant should file this proof with the court to demonstrate that the summons was duly served.
c. Requirement of Magistrate’s Permission
Generally, permission from the Magistrate is not required for sending summons by post if it is in accordance with the standard procedures. However, if there is any dispute regarding the service, the complainant must provide proof of service.
Service by WhatsApp
a. Supreme Court and High Court Guidelines
The Supreme Court has not officially sanctioned the use of WhatsApp for serving summons. However, some High Courts have recognized its use in specific circumstances. For example, in Shakuntala Devi v. State of Karnataka (2020), the High Court allowed service via WhatsApp as an interim measure, provided other traditional methods were exhausted first.
b. Legal Procedure
- Sending the Summons: The complainant can send a scanned copy of the summons through WhatsApp to the accused.
- Proof of Service: To validate service via WhatsApp, the complainant should obtain a delivery and read receipt. It is also advisable to follow up with traditional methods and file an affidavit in court stating that WhatsApp was used.
c. Requirement of Magistrate’s Permission
As WhatsApp service is not universally recognized as a standard method, it is prudent to seek prior permission from the Magistrate before using this method, especially in the absence of traditional service methods.
Procedure and Compliance
Before Issuing Summons
- File a Complaint: Ensure that the complaint under Section 138 is filed with all requisite documents and affidavits.
- Application for Summons: Submit an application requesting the issuance of summons along with proof of address and any relevant evidence of previous attempts to serve.
After Summons is Issued
- Serve Summons: Use the approved method (post, courier, court bailiff, etc.) to serve the summons.
- File Proof: Submit proof of service to the court, such as postal receipts or delivery acknowledgments.
- Follow-Up: If the accused does not respond, follow up according to the court’s instructions and consider alternative methods if necessary.
In Case of Failure to Serve
If the summons cannot be served through the usual methods, the complainant may need to request alternative methods such as publication in newspapers or request further directions from the court.
Conclusion
Serving summons in cheque bounce cases under Section 138 of the Negotiable Instruments Act requires adherence to specific procedures to ensure legal validity. While traditional methods like postal service and personal delivery by court bailiffs are well-established, modern methods like WhatsApp can be used under specific circumstances, often with prior permission from the Magistrate. Understanding and following these guidelines ensures that the accused receives proper notice and that the legal process proceeds smoothly.
