Cheque-bounce complaint before the magistrate (s.138)

What this is

A cheque-bounce complaint is a criminal case you bring against the person who gave you a cheque that came back unpaid. That person is the drawer; you, the person the cheque was made out to, are the complainant.

The offence is in Section 138 of the Negotiable Instruments Act, 1881. It is committed when a cheque given for a debt or other liability is returned because there is not enough money in the account, or because it exceeds the amount arranged with the bank, and the drawer then fails to pay after a written demand. The court can punish it with imprisonment of up to two years, a fine of up to twice the cheque amount, or both.

The case is heard by a magistrate — a Metropolitan Magistrate in the large cities, or a Judicial Magistrate of the first class elsewhere. No lower court can try it (Section 142).

When it applies

You can file the complaint only when all of these are true:

1. The cheque was presented in time — within six months of its date, or within its period of validity if that is shorter.
2. It was for a debt or liability that can be enforced in law, not a gift.
3. It came back unpaid for want of funds, or because it exceeded the arrangement with the bank. The bank's return memo shows this.
4. You sent a written demand notice within 30 days of receiving the bank's information that it was returned.
5. The drawer did not pay the cheque amount within 15 days of receiving the notice.

If step 4 has not happened yet, you are not at this stage. Send the notice first: see Cheque bounced? What to do in the first 7 days and the demand notice format.

The steps and the timeline

1. The one-month window opens. The offence is complete when the drawer's 15 days run out without payment. From then, Section 142 gives you one month to file the complaint. A complaint filed later can be accepted only if you satisfy the court that you had sufficient cause for the delay. Filing too early — before the 15 days have run out — is also a mistake. The deadline calculator works out both dates from your memo and delivery dates.

2. Choosing the court. Under Section 142, if you deposited the cheque through your bank account, the case goes to the court for the area where your branch is — the branch where you keep that account, even if you dropped the cheque at a different branch. If you presented the cheque at the drawer's bank yourself, not through an account, it goes to the court where the drawer's branch is.

3. Filing. The complaint is in writing, made by you as the payee. It sets out the debt, the cheque, the return, the notice, its delivery, and the non-payment, and attaches the papers. Your own evidence can be given on affidavit (Section 145), which saves time.

4. Cognizance and summons. The magistrate looks at the complaint and your evidence. If satisfied, the court takes cognizance — formally takes up the case — and issues a summons, an order to the drawer to appear. Under Section 144, the summons can be sent by speed post or approved courier; if the drawer refuses it, the court can declare it served.

5. The drawer appears and is asked how they plead. If they plead guilty, the case can end there. If they plead not guilty, the trial goes ahead, and the court can order interim compensation of up to 20% of the cheque amount, to be paid to you within 60 days (Section 143A).

6. Evidence. The law starts in your favour. The court presumes that the cheque was given for a debt or liability (Section 139), and that it was dishonoured once it sees the bank's memo with the bank's official mark (Section 146). It is for the drawer to show otherwise. Your advocate tenders your affidavit and documents; the drawer's advocate can cross-examine you, and the drawer can lead their own evidence.

7. Arguments and judgment. After evidence, both sides argue. If the offence is proved, the court sentences the drawer and can order compensation to you. If not, the drawer is acquitted — and any interim compensation you received must be repaid with interest.

How long it takes. Section 143 says these cases are to be tried summarily, as far as practicable from day to day, and that the court should try to finish within six months of filing. That is an aim the law sets, not a deadline the court must meet; the actual time depends on the court and on how the drawer defends.

Settling. At any stage, the two sides can settle and the court can close the case (Section 147).

Documents needed

• The original cheque.
• The bank's return memo, and your account statement showing the cheque returned.
• Proof of the debt or liability: an agreement, invoices, a loan record, bank transfers, messages.
• A copy of the demand notice you sent.
• The postal receipt, the tracking record showing delivery, and the acknowledgement card or the returned envelope (unopened).
• Any reply the drawer sent to your notice.
• Your identity proof and address, and the drawer's addresses.
• If the drawer is a company or firm, whatever you know about its directors or partners.

Keep the originals safe; the court will want to see them. Give your advocate copies first and the originals when they ask.

What it costs

Two costs, both outside eMunshi's prices:

• The court fee. This is set by each state and varies. Your advocate will tell you the fee in your court.
• The advocate's fee. It varies with the city, the court and how far the case goes. The advocate quotes their own fee for your matter before you pay anything.

Interim compensation, if ordered, is paid to you by the drawer. It is not a cost to you, but it must be repaid if the drawer is acquitted.

What the advocate does

• Checks that every condition of Section 138 is met: presentation in time, the reason on the memo, the 30-day notice, delivery, and the 15 days.
• Works out the right court and the last day to file.
• Drafts the complaint and your affidavit, and files them with the papers.
• Appears at the hearings, asks for interim compensation when the drawer pleads not guilty, and handles cross-examination and arguments.
• Negotiates and records a settlement if one is offered.
• Advises on the appeal if the judgment goes either way.

An independent advocate from our panel can take it on. They review your papers and quote their fee before you pay. eMunshi is a technology platform, not a law firm; the advocate you choose represents you.

The document that comes before it

The complaint depends on a valid demand notice. If you have not sent one, and you are still inside the 30 days from the bank's return memo, send it now: eMunshi's cheque-bounce demand notice is drafted from your answers, checked and sealed by a panel advocate, and sent by registered post with tracking, for ₹999.

If you received a notice rather than sent one, see Reply to cheque-bounce notice.

Mistakes that sink complaints

• Filing more than a month after the 15 days ended, with no reason the court will accept.
• Filing before the 15 days are over. The offence is not yet complete.
• Filing in the wrong court. Check where your branch is.
• No proof the notice was delivered, or a notice that demanded the wrong amount.
• Losing the original cheque or memo.
• Ignoring a settlement offer without discussing it with your advocate. Settlement is often the quickest way to be paid.

Not sure where you stand? A 30-minute call with an independent advocate starts at ₹999.