It is well settled in law that modes of service of legal notice under section 138 of N.I.Act,1881 is not only limited to registered post but the following are also accepted & valid mode of service of legal notice :
i) by courier
ii) by fax message or
iii ) by electronic mail (e-mail )
The aforesaid issue was dealt in the following case laws :
1.Suo Motu vs Registrar, High Court of Gujarat AIR 2002 Guj 388, (2002) 2 GLR 1649
The High Court of Gujarat held that
It is relevant to notice that the provisions of Order 5, Rule 9 C.P.C. would be applicable not only in the case of service of the summons in a suit, but would be applicable to other proceedings, such as First Appeal, Second Appeal, Revision etc., and therefore, the provisions of Order 5, Rule 9 will have to be interpreted in a broad manner.
The Reference proceeds on the footing that the only recognized modes of service are : (i) personal service by an officer of the Court, (ii) service by post, (Hi) service by affixing, and (iv) substituted service. Because C.P.C. specifically mentions four modes of service, it would not mean that the mode of service “otherwise directed” by a Court provided under Order 5, Rule 9(1) is not a mode of service recognised by C.P.C. On analysis of the provisions of law, we find that there may be other modes of service also, such as, service by Courier or service by Fax message or service by Electronic Mail service or service by litigant directly etc. and there is nothing either in the provisions of the Code or the Rules by which it can be said that other modes of service are excluded or prohibited.
The phrase “unless the Court otherwise directs” employed by the Legislature is of wide amplitude and any mode of service, which is considered to be proper by the Court, would become a recognised mode of service.
In Sil Import (supra), it was noticed by the Supreme Court that under Clause (b) of Section 138 of the Negotiable Instruments Act, 1881, a duty is cast on the Payee to make a demand for payment within 15 days on receipt of information regarding the return of the cheque unpaid by giving notice in writing to the drawer of the cheque. Nowhere is it said that such notice must be sent by registered post or that it should be despatched through a messenger. In that case, notice was sent by Fax and had reached the drawer of the cheque within the period of 15 days. The question considered by the Supreme Court was whether the despatch of notice through Fax was proper or not.
On review of law, the Supreme Court has held that if the notice envisaged in Clause (b) of the proviso to Section 138 is transmitted by Fax, it would be compliance with the legal requirement. While adopting this construction, what is highlighted by the Supreme Court is that the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed, meaning thereby that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law. Applying the rule of construction as suggested by the Supreme Court, we find that there is no express provision in Order 5, Rule 9 C.P.C. which prohibits a Court from giving direction to serve the other side by direct service and the phrase “unless the Court otherwise directs” being of wide amplitude, would take within its sweep the power of the Court to direct service of summons on the defendant/opponent/respondent directly either by the litigant or his recognised agent or his Advocate or a recognised clerk of the Advocate also.
Further, we find that service of summons on the defendant/ opponent/respondent is a well recognised mode of service as well as time-honoured practice, and therefore, it would not be correct to hold that direct service being not a recognized mode of service, is either illegal or prohibited by law.
M/S. Sil Import, Usa vs M/S. Exim Aides Silk Exporters AIR 1999 SC 1609
The Supreme Court of India while dealing with the issue focussed on technology advancement and its applicability in law as below :
Chapter XVII of the Act, containing Sections 138 to 142, was inserted in the Act as per Banking Public Financial Institution and Negotiable Instruments Laws (Amendment) Act, 1988. When the legislature contemplated that notice in writing should be given to the drawer of the cheque, the legislature must be presumed to have been aware of the modern devices and equipment already in vogue and also in store for future. If the court were to interpret the words giving notice in writing in the section as restricted to the customary mode of sending notice through postal service or even by personal delivery, the interpretative process would fail to cope up with the change of time.
Facsimile (or Fax) is a way of sending hand-written or printed or typed materials as well as pictures by wire or radio. In the West such mode of transmission came to wide use even way back in the late 1930s. By 1954 International News Service began to use Facsimile quite extensively. Technological advancement like Facsimile, Internet, E-mail etc. were on swift progress even before the Bill for the Amendment Act was discussed by the Parliament. So when Parliament contemplated notice in writing to be given we cannot overlook the fact that Parliament was aware of modern devices and equipment already in vogue.
Francis Bennion in Statutory Interpretation has stressed the need to interpret a statute by giving allowances for any relevant changes that have occurred, since the Acts passing, in law, social conditions, technology, the meaning of words, and other matters.
For the need to update legislations, the Courts have the duty to use interpretative process to the fullest extent permissible by the enactment. The following passage at page 167 of the above book has been quoted with approval by a three Judge-Bench of this Court in State vs. S.J. Chaudhary (1996 2 SCC 428): It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed (an updating construction). While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.”
So if the notice envisaged in clause (b) of the proviso to Section 138 was transmitted by fax it would be compliance with the legal requirement.