Criminal Complaint Under Section 138 of the Negotiable Instruments Act: Format and Filing Procedure
When a cheque issued towards a legally enforceable debt or liability is dishonoured and the drawer fails to pay after receiving a valid statutory demand notice, the payee or holder in due course may file a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881, subject to the statutory conditions.
This guide explains the essential provisions, limitation periods, territorial jurisdiction, supporting records and a practical specimen complaint. For detailed filing guidance, also see time limit and procedure for a Section 138 complaint.
Applicable legal provisions
- Section 138, Negotiable Instruments Act, 1881: penalises dishonour of a cheque for insufficiency of funds or exceeding an arrangement, where the cheque was drawn to discharge a legally enforceable debt or liability and the statutory notice and non-payment requirements are satisfied. Punishment may extend to imprisonment for two years, a fine up to twice the cheque amount, or both.
- Section 139: creates a rebuttable presumption that the holder received the cheque towards discharge, wholly or partly, of a debt or liability.
- Section 140: excludes the defence that the drawer had no reason to believe the cheque might be dishonoured.
- Section 141: addresses offences by companies and persons responsible for their business, subject to its requirements and defences.
- Section 142: governs cognizance, filing by the payee or holder in due course, the one-month complaint period and the competent court.
- Section 142(2) and Section 142A: govern territorial jurisdiction and validation/transfer rules, including collection through an account.
- Sections 143, 143A, 145, 146 and 147: address summary trial, interim compensation where applicable, affidavit evidence, bank return memo presumptions and compounding.
Official legislation: Negotiable Instruments Act, 1881 (India Code); India Code statutory database. The Bharatiya Nagarik Suraksha Sanhita, 2023 generally governs criminal procedure for proceedings to which it applies, subject to transitional and special-law provisions; the NI Act's special procedure continues to apply. Consult the official text of the BNSS and applicable court rules.
Statutory timeline for a cheque bounce complaint
| Stage | Requirement |
|---|---|
| Presentation | Present the cheque within its validity period (ordinarily three months under banking directions) and within the statutory framework of Section 138. |
| Demand notice | Send a written demand to the drawer within 30 days of receiving information from the bank regarding dishonour. |
| Payment opportunity | Allow 15 days from receipt of the notice for payment of the cheque amount. |
| Cause of action | Arises on expiry of those 15 days without payment. |
| Complaint filing | File within one month from the date the cause of action arises, subject to the court's power to condone delay under Section 142(1)(b). |
Jurisdiction: Where the cheque is delivered for collection through the payee's account, Section 142(2)(a) generally identifies the court where the payee's bank branch maintaining that account is situated. Where presented otherwise than through an account, Section 142(2)(b) applies. The place of issue or dishonour alone should not be treated as the universal jurisdiction test.
Specimen criminal complaint under Section 138
Replace bracketed entries with verified facts. This specimen assumes an individual drawer, a loan or other legally enforceable liability, and timely notice. Adapt the pleading for companies, authorised representatives, multiple cheques and other circumstances.
IN THE COURT OF THE JUDICIAL MAGISTRATE FIRST CLASS / METROPOLITAN MAGISTRATE AT [PLACE]
Complaint Case No.: [To be assigned] / [Year]
[Full name, address and particulars of complainant]
... Complainant
Versus
[Full name and address of accused / drawer]
... Accused
COMPLAINT UNDER SECTION 138 READ WITH SECTION 142 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881
Most respectfully submitted:
- That the complainant is [occupation/business] residing or carrying on business at [full address] and is the payee/holder in due course of the cheque described below.
- That on [date], the accused requested a friendly loan of Rs. [amount] / incurred a legally enforceable liability arising from [accurately describe transaction]. The complainant advanced Rs. [amount] on [date] through [payment mode], repayable on [terms/date].
- That towards discharge, in whole or in part, of the said legally enforceable debt or liability, the accused issued cheque bearing No. [number], dated [date], for Rs. [amount], drawn on [bank and branch], account held by the accused.
- That the accused represented that the cheque would be honoured on presentation. The complainant presented the cheque through [collecting bank and branch] on [date], within its validity period.
- That the cheque was returned unpaid by bank return memo dated [date], with the endorsement "[exact reason shown on memo]". The complainant received information of dishonour on [date].
- That within 30 days of receiving information of dishonour, the complainant issued a written statutory demand notice dated [date] calling upon the accused to pay the cheque amount. The notice was sent by [mode] to [address], with dispatch/tracking particulars [details], and was served/deemed served on [date], as supported by [records].
- That the accused failed to pay the cheque amount within 15 days of receipt of the statutory demand notice. The cause of action arose on [date].
- That this Hon'ble Court has territorial jurisdiction under Section 142(2) of the Negotiable Instruments Act because [state the precise collecting-bank-account branch facts or other applicable statutory ground].
- That the present complaint is filed within the limitation prescribed by Section 142(1)(b). The relevant dates are: cheque dated [date]; presentation [date]; dishonour information [date]; notice [date]; service [date]; expiry of 15-day period [date]; cause of action [date]; filing [date]. [If delayed, plead sufficient cause and seek condonation separately.]
- That the complainant relies on the cheque, bank return memo, demand notice, postal/courier/electronic service records, transaction documents and other annexures listed below, and proposes to adduce evidence in accordance with law.
PRAYER
In these circumstances, the complainant respectfully prays that this Hon'ble Court may be pleased to:
- Take cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, and issue process against the accused in accordance with law;
- Upon trial, convict and sentence the accused in accordance with Section 138, if the offence is proved;
- Award compensation/restitution as permissible under the applicable law and facts, including consideration of interim compensation under Section 143A where legally available;
- Pass such further orders as this Hon'ble Court considers just and proper.
Place: [Place]
Date: [Date]
Complainant: [Name and signature]
Through counsel: [Advocate name and signature, if represented]
VERIFICATION
I, [name], the complainant above named, verify that paragraphs [numbers] are true to my personal knowledge and paragraphs [numbers] are based on records and information believed to be true. Verified at [place] on [date].
Signature of complainant: ____________________
Documents and witnesses to accompany the complaint
- Original cheque or the legally acceptable original/electronic record, as applicable, and copies required by the court.
- Bank return memo or dishonour advice stating the bank's reason for return.
- Copy of statutory demand notice and proof of dispatch, delivery, tracking or legally relevant service.
- Loan agreement, invoices, account statements, receipts or other proof of underlying debt or liability, where available.
- Complainant's evidence affidavit under Section 145, list of documents and witnesses, and any prescribed court forms.
- Authority letter, board resolution or power of attorney, where the complaint is instituted through an authorised representative.
- Relevant company particulars and specific Section 141 averments where the drawer is a company.
Important drafting and filing notes
A Section 138 offence is not automatically an offence of cheating. Do not routinely add a cheating allegation or cite the repealed Indian Penal Code Section 420 for post-commencement conduct without independent facts supporting the applicable criminal offence. The Bharatiya Nyaya Sanhita, 2023, contains the current general cheating provisions, including Section 318, subject to commencement and savings rules.
A cheque bounce complaint should accurately describe the underlying liability, actual bank return reason, notice service and statutory dates. The cheque amount is not automatically recoverable at twice its value: twice the amount is the statutory upper limit for a fine under Section 138, not an automatic award. Compensation and other relief are determined under applicable law.
For corporate drawers, identify the company and plead the specific role of each individual sought to be proceeded against under Section 141. Do not rely solely on an individual's job title. Follow the competent court's filing, affidavit, electronic filing and process-service requirements.
Legal information and sample drafting only; not a substitute for advice on the facts of a particular case. Verify current statutes, judicial precedents, limitation computation and local court practice before filing.