Proceedings under Section 138 of the Negotiable Instruments Act, 1881 are among the most common criminal matters in the country, and a striking number of them are decided not on whether the money is owed but on whether somebody counted the days correctly.
The sequence
- The cheque is dishonoured. The bank issues a return memo. That date starts everything.
- Thirty days from receipt of that memo to issue a written demand notice to the drawer.
- Fifteen days from receipt of that notice for the drawer to pay.
- One month from the expiry of those fifteen days to file the complaint.
Each of those periods is fixed. A demand notice issued on day thirty-two is not a valid notice, and a complaint filed after the month has run is liable to be dismissed on limitation regardless of the underlying debt.
Keep the envelope
The single most useful thing a client brings to one of these matters is the postal envelope with its date stamp, along with the postal receipt and tracking record. Whether a notice was served, and when it was received, is contested constantly, and the postal record is what settles it.
What has to be established
The cheque must have been issued in discharge of a legally enforceable debt or liability. That is where most defences live — the cheque was a security, it was blank when handed over, the amount was filled in later, the debt was already paid, or there was no debt at all.
The statute presumes in the complainant’s favour on some of these points, which means the burden of displacing that presumption sits with the accused. It can be displaced, but not by assertion alone.
If you have received a notice
You have fifteen days from receipt to pay, and that period is short. Do not ignore it, and do not send a reply drafted in anger — a reply is a document that will be read out in court later. Bring the notice, the cheque details, the return memo and the envelope, and get advice within the fifteen days rather than after them.
If your cheque has bounced
Move quickly. Obtain the return memo from the bank, and get the demand notice out well inside thirty days. A properly drafted notice also frequently produces payment without a complaint ever being filed, which is the better outcome for everyone.
Compounding
These are compoundable offences. Matters settle at every stage, and courts encourage it. If settlement is realistic, it is usually worth pursuing in parallel rather than waiting for the trial to conclude.
Both sides of Section 138 work are covered on the criminal defence page. Deadlines here are short — call or WhatsApp +91 98300 78687, or use the contact page.
General information only, not legal advice on any particular case.
