Criminal

Criminal Complaint for Dishonour of Cheque under Section 138 NI Act

A criminal complaint for dishonour of cheque is the initiating document that sets the prosecution of the drawer in motion. It formally alleges the commission of the offence under Section 138 of the Negotiable Instruments Act, 1881, and prays for the accused to be summoned, tried, and punished.

This complaint is filed before the Court of the Metropolitan Magistrate or Judicial Magistrate First Class having jurisdiction under Section 142(2) of the NI Act. It rests on Sections 138, 139, and 142, and where the drawer is a company or firm, Section 141 for vicarious liability.

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Governing law
Negotiable Instruments Act 1881, ss.138/139/142 r/w s.141
Sections
s. 138s. 139s. 141s. 142
Filed before
Court of Metropolitan Magistrate / Judicial Magistrate First Class

When this is the right filing

  • When a cheque is returned unpaid by the bank for reasons of insufficient funds or exceeding arrangement.
  • When the payee has issued a statutory demand notice within 30 days of receiving the bank's dishonour intimation.
  • When the drawer has failed to make the payment within 15 days of receiving the demand notice.
  • When the complaint is being filed within the limitation period prescribed under the proviso to Section 142(1)(b).
  • Do not use this complaint if the demand notice was not served or the limitation period has expired without a condonation of delay application.

What the court looks for

  • A clear pleading of all five ingredients of the Section 138 offence, from drawing of the cheque to the failure to pay within the statutory period.
  • A precise list of dates and events establishing the timeline of the transaction and the cause of action.
  • Specific averments under Section 141 against each natural person arrayed as an accused for a company or firm drawer.
  • A prayer clause seeking cognizance, issuance of process, trial, conviction, and compensation.
  • An index of annexures with copies of the cheque, return memo, demand notice, and proof of service.

The structure the court expects

The components of the filed format, in the order they appear. LexPilot fills every one of them from your facts and papers.

  1. 1List of dates & events
  2. 2Facts
  3. 3Grounds
  4. 4Prayer
  5. 5List of witnesses
  6. 6Index / annexures
How it opens
1. That the Complainant is [complainant status] and the Accused [relationship]. The Accused was, at all material times, liable to pay the Complainant a sum of ₹[amount]/- towards [consideration], being a legally enforceable debt and liability within the meaning of Section 138 of the Negotiable Instruments Act, 1881.

Bracketed items are filled from your case.

Frequently asked questions

How must a company and its directors be arrayed as accused in the complaint?

The company or firm must be arrayed as Accused No. 1. Each director or partner sought to be made liable must be arrayed separately by name with the specific averment that they were 'in charge of and responsible for the conduct of its business at the relevant time', as required under Section 141 of the NI Act.

What are the five essential ingredients that must be pleaded in the complaint?

The complaint must plead the drawing of the cheque, its presentation within its validity period, its return unpaid by the bank, the issuance of a demand notice within 30 days of receiving the dishonour intimation, and the drawer's failure to pay within 15 days of receiving the notice.

Which court has the territorial jurisdiction to try a cheque dishonour case?

Under Section 142(2) of the NI Act, the offence is to be inquired into and tried only by a court within whose local jurisdiction the branch of the payee's bank, where the payee maintains the account into which the cheque was deposited, is situated.

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