Section 138. of NI Act. deals with Dishonor of cheque for insufficiency, etc., of
funds in the accounts
When a case of cheque bounce is presented before the advocate and on the request
of the client, an advocate has to issue a legal notice to the person who issued
the cheque within 30 days from the date of the cheque bounce and call for amicable
settlement / demand the amount for which cheque was bounced providing 15days to
respond and settle the matter and also attach a copy of memo received from the bank.
The Opposite Party has 15 days from the receipt of the notice to settle the matter
and not from the notice sent date. No cause of action arises and client needs to
wait for the period of 15 days given to the opposite party response and settles
the matter that’s the end. If opposite party did not respond or does not want to
settle the matter within the given time of 15 days after completion of the given
period, then the holder of the cheque can file a criminal case before appropriate
court jurisdiction within 30 days of the of the expiry of given time. In case, it
is beyond the said period of 30 days, the delay can be condoned by the court on
sufficient cause being shown.
The complaint needs to be filed before the jurisdictional magistrate within 30 days
from the accrual of the cause of action. The complainant needs to be present before
the magistrate at the time of filing. A complaint should be filed in the jurisdiction
of the accused bank as most of the courts are not acceptable in the jurisdiction
of complainant bank. The Hon'ble judge will pass it over to the Section for check
and put up where section employees verify that the jurisdiction, documents.If satisfied
the file will be sent to Hon’ble Judge. At the time of check and Put up the original
documents need to be shown to the appropriate authority. If Hon’ble Judge satisfies
with the Check N Put up and the Case, the magistrate will post the matter for the
At this stage, the complainant needs to enter the witness box and give further details
regarding the case. If the magistrate is satisfied that there is some substance
in the case of the complainant, then he will issue summons to the accused.
Appearance of Accused:
On receipt of summons, the accused need to appear in the court. If accused appears
then the next step would be Recording of Plea else If he does not appear in the
court, the court will issue an arrest warrant against him. After the appearance,
the accused is supposed to take a bail from the court with or without sureties.
If the accused is unable to furnish a surety then he can deposit a cash security,
instead of surety. This cash security is refundable to the accused after the conclusion
of the case.
Recording of Plea:
In the next stage, the court will ask the accused as to whether he has committed
the offence or not. If the accused admits the guilt, the court will immediately
pronounce the punishment. If he pleads innocence, the court will post the matter
The Complainant has to furnish his evidence, normally by way of affidavit; this
is known as examination-in-chief. He needs to produce all documents in support of
his case like bounced cheque, dishonor memo, a copy of notice etc. Later complainant
will be cross-examined by the accused. If there are other witnesses in support of
the complainant, then their evidence also has to be recorded.
Statement of the Accused:
After the Complainant side evidence is over, the court will put some questions to
the accused regarding his guilt. An accused needs to give his version to the same.
After the Accused statement the court will give an opportunity to the accused to
leave his evidence. The accused can also produce documents in support of his case,
as well as witnesses in his support. Accused and his witnesses will be cross-examined
by the complainant. After this, the case is posted for arguments.
Both the Complainant and the accused will submit their arguments before the court.
They can also furnish judgments of high courts and Supreme Court in support of their
case. Normally a written argument containing a gist of the oral argument is also
furnished to the court.
After the arguments, the case would be posted for judgment. If the court finds that
the accused has committed offence, he will be punished with fine or imprisonment.
If he is innocent, the court will acquit him. If the accused is convicted, he can
file an appeal before the sessions’ court within 30 days.