Clause (b) of the Proviso to Section 138 requires as under:
“(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and”
Now, the notice of demand made and the same being sent by post are in the form of documentary evidence. The Evidence Act lays down how documentary evidence can be proved. Firstly, a document can be proved only by primary evidence (which means the production of the document itself), but in certain situations, it may be possible to produce secondary evidence also to prove a document (secondary evidence is of 5 types, including oral accounts).
Now, you say that the complainant has no postal proof of sending the notice. I think what you mean to say is that such postal proof is either destroyed or lost (if there is some other reason, please inform). In such a situation, firstly, you may try to approach the post office and try to get evidence from them, even if your own postal proof is lost. Now, presuming that the post office also does not have any records. Then, what to do? Well, such a situation is covered in Section 63(5) of the Evidence Act, which says that “oral accounts of the contents of a document given by some person who has himself seen it” is also secondary evidence, and in Section 65(c) of the said Act which says what type of secondary evidence can be given and how “when the original has been destroyed or lost”, and in such a case “any secondary evidence of the contents of the document is admissible”, which means that even “oral accounts of the contents of the document given by some person who has himself seen it” can be given in the form of secondary evidence.
Therefore, legally speaking, it should be permissible for the complainant to give evidence in the form of his own deposition in the court (in the form of his affidavit) by way of oral accounts of the postal proof. However, it may be a weak evidence and can be challenged in the cross-examination. How much value can be attached with such evidence will further depend on the facts and circumstances of the case and the way the court appreciates such evidence.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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