Negotiable Instruments Act: Cheque Dishonour Section 138 — Complete Process and Remedies

Dishonour of a cheque is a criminal offence under Section 138 of the Negotiable Instruments Act 1881. With over 4 million pending cases in courts, this provision is the most litigated financial offence in India. This guide covers the complete process — from sending demand notice to court procedure.

When is Section 138 Applicable?

A cheque is dishonoured under Section 138 when:

• Cheque is issued for discharge of a legally enforceable debt or liability
• Cheque is presented to bank within its validity period (3 months from date)
• Cheque is returned unpaid due to: insufficient funds, exceeds arrangement, or stop payment instruction

Not applicable: cheques issued as security, gifts, or advance (if no existing debt/liability).

Mandatory Steps Before Filing Complaint

1. Return of cheque memo: Obtain bank return memo stating reason for dishonour
2. Demand Notice (15 days): Send written notice to drawer within 30 days of receiving return memo, demanding payment within 15 days
3. Non-payment: If drawer fails to pay within 15 days of receiving notice — complaint can be filed
4. Time limit to file complaint: Within 1 month of expiry of the 15-day notice period

Court Procedure

• Complaint filed at Judicial Magistrate Court (where: cheque drawn, bank located, or payee resides/carries business)
• Magistrate issues process; accused appears
• Accused can plead Not Guilty → Trial; or Guilty → Sentencing
• Summary trial for amounts up to Rs. 1 crore (fast-tracked)

Punishment Under Section 138

• Imprisonment: Up to 2 years, OR
• Fine: Up to twice the cheque amount, OR
• Both

Section 147 — Compounding

Section 138 offences are compoundable. Parties can compound (settle) at any stage before judgment with court's permission. Typically: accused pays cheque amount + some additional compensation. On compounding, case is dismissed.

Section 143A — Interim Compensation

During trial, the court may order drawer to pay interim compensation of up to 20% of cheque amount to the complainant. If accused acquitted, the interim compensation must be refunded with interest.