Procedure to file complaint u/s. 138 N. I. Act 1881

Procedure to file complaint u/s. 138 Negotiable Instruments Act

Filing a complaint under Section 138 of the Negotiable Instruments Act is typically related to dishonor of a cheque due to insufficient funds or other reasons. Here’s a general procedure for filing such a complaint:

1. Notice to the Drawer: Before filing a complaint, the payee (the person to whom the cheque was issued) needs to send a legal notice to the drawer (the person who issued the cheque) within 30 days of the cheque being dishonored. The notice should demand the payment of the cheque amount within 15 days of receipt of the notice.
2. Waiting Period: After sending the notice, there’s a waiting period of 15 days for the drawer to make the payment. If the drawer fails to make the payment within this period, the payee can proceed with filing a complaint.
3. Drafting the Complaint: The payee or their legal representative will need to prepare a complaint (also known as a ‘complaint case’) before the appropriate court. The complaint should include details such as:
   • Names and addresses of both the drawer and payee.
   • Description of the cheque, its amount, date, and bank details.
   • Copies of the notice sent to the drawer and its acknowledgment or proof of delivery.
   • Explanation of the offense committed under Section 138 of the Negotiable Instruments Act.
4. Filing the Complaint: The complaint needs to be filed in the appropriate court (usually a Magistrate Court or a Metropolitan Magistrate Court, depending on jurisdiction). It should be accompanied by the necessary supporting documents, such as the original bounced cheque, notice sent to the drawer, and any other relevant evidence.
5. Court Procedure: Once the complaint is filed, the court will review it and issue summons to the drawer, requiring their appearance in court. The drawer may also have the opportunity to respond to the complaint.
6. Evidence and Proceedings: Both parties will have the chance to present their evidence, including witnesses and documents, to support their case. The court will hear the arguments from both sides and make a decision based on the evidence presented.
7. Verdict and Judgement: If the court finds the drawer guilty under Section 138 of the Negotiable Instruments Act, it may impose penalties, including imprisonment or a fine, or both. It may also order the drawer to pay the cheque amount to the payee.

Please note that this is a general outline of the procedure, and specifics may vary depending on the jurisdiction and court rules. It’s highly recommended to seek legal advice from a qualified lawyer or legal expert who specializes in such cases for accurate guidance and representation.

Limitation U/s. 138 of the Negotiable Instrument Act, 1881

Under the Negotiable Instruments Act, the limitation period for filing a complaint in a cheque bouncing case under Section 138 is crucial. As of my last knowledge update in January 2022, the limitation period for filing a complaint is:

The complaint should be filed within 30 days from the date on which the cause of action arises, i.e., from the date when the payee/holder of the cheque receives information from the bank about the dishonor of the cheque due to insufficient funds or any other reason.

Additionally, within this 30-day period, the payee/holder must send a legal notice to the drawer of the cheque demanding payment of the cheque amount within 15 days from the receipt of the notice.

Failure by the drawer to make the payment within the stipulated 15-day period can enable the payee/holder to proceed with filing the complaint under Section 138 of the Negotiable Instruments Act within the overall 30-day limitation period.