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Criminal Complaint under Section 138 of the Negotiable Instruments Act, 1881

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A criminal complaint under Section 138 NI Act initiates prosecution for dishonour of cheque. The complaint must establish statutory ingredients clearly in chronological order, supported with documents. This section outlines essential pleadings, jurisdictional aspects, case law, and provides a skeleton draft format.

Practical Note

  • Section 138 complaints are quasi-civil in substance but criminal in procedure.
  • Drafting must:
    • Establish statutory ingredients in clear, chronological paragraphs.
    • Attach relevant documentary evidence.
    • Plead jurisdiction precisely.
  • Source: India Code (Sections 138 & 142)

Key Ingredients to Plead

  1. Identity of Parties

    • Complainant, accused, and respective banks/branches.

  2. Cheque Particulars

    • Cheque number, date, amount, drawer bank/branch, payee name.
    • Attach copy (front & back).
    • Source: India Code

  3. Presentation Details

    • Date of presentation.
    • Banker’s return memo (with date & reason).
    • Attach memo as annexure.
    • Source: India Code

  4. Demand Notice

    • Date of notice.
    • Attach postal receipt & AD / courier POD.
    • Plead contents and 15-day cure period.
    • Source: India Code

  5. Failure to Pay

    • Date when 15-day period expired.
    • Averment that drawer failed to pay.
    • Plead cause of action date and filing date to show Section 142 compliance.
    • Source: India Code

  6. Existence of Debt/Liability

    • Transaction details (sale/loan/service).
    • Attach contract/invoice/ledger/acknowledgement.
    • If cheque was security: plead underlying enforceable liability.
    • Case law: M.M.T.C. Ltd. v. Medchl Chemicals & Pharma (2002)
    • Source: CaseMine

  7. Jurisdiction

    • Plead facts about cheque delivery/presentation and payee’s account.
    • Post-2015 rules govern territorial jurisdiction.
    • Source: India Code

  8. Reliefs

    • Prayer for punishment under Section 138 (imprisonment/fine).
    • Prayer for compensation and costs.
    • Sensible drafting: pray for what trial court can grant; optionally include civil relief clause.
    • Source: India Code

Model — Skeleton Complaint (Short Form)

IN THE COURT OF [MAGISTRATE NAME], [PLACE]

Complaint No. __ of 20__

Between:
[Complainant (Name & Address)] — Complainant

Versus

[Accused / Drawer (Name & Address)] — Accused

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881

1. The complainant states that he is a resident of [address] and engaged in [business]. The accused is a resident of [address & other known addresses].

2. On [date], the accused issued Cheque No. ______ dated ______ for Rs. ______ (Rupees ______) in favour of the complainant towards [goods/sale/loan]. Copy of the cheque is annexed as Annexure-C.

3. The said cheque was presented on [date] to [bank & branch] and was returned unpaid on [date] with memo/remarks: “[insert bank return memo]”. Copy of bank return memo is annexed as Annexure-D.

4. The complainant issued statutory demand notice on [date] within 30 days from receipt of bank memo (copy enclosed as Annexure-E) calling upon the accused to pay the cheque amount within 15 days. Postal receipt/AD/courier POD is annexed as Annexure-F.

5. The accused failed to make payment within 15 days. The cause of action therefore arose on [date]. The complaint is being filed within one month of the date on which cause of action arose.

6. The cheque was issued towards discharge of legally enforceable debt/other liability arising out of [briefly plead facts]. Relevant documents such as invoice/contract/ledger entries are annexed as Annexure-G.

7. The accused dishonoured the cheque intentionally/without lawful excuse. The accused has failed to pay despite receipt of statutory notice.

8. The complainant therefore prays that the accused be summoned and punished under Section 138 of the Negotiable Instruments Act, 1881, and that costs/compensation be awarded as per law.

List of Documents: Annexures A — [list everything].
List of Witnesses: 1. Complainant 2. Bank official 3. [others if any].

VERIFICATION
Verified at [place] on this ___ day of ______ 20__ that the facts stated above are true to my knowledge and belief.

[Signature]
[Name]

Annexures to file with complaint (minimum)

  • cheque copy
  • bank return memo
  • letter of demand (notice)
  • postal receipt/AD/courier POD
  • contract/invoice/ledger
  • authorization (if appearing for company)
  • list of witnesses.

Company / Authorized-representative issues — drafting notes

If complainant is a company/firm, file an affidavit of authorization (board resolution, power of attorney) or affidavit of de facto complainant along with explanation; MMTC v. Medchl permits rectification of initial defects by later ratification — but draft authority facts early and attach documents to avoid quashing applications. CaseMine

Model wording (authorization):

AFFIDAVIT/AUTHORITY
I, [name/designation], authorized signatory of [Company], do hereby state that the company has authorized me vide Board Resolution dated ____ to institute and prosecute this complaint and to verify the same. (Annex: Board resolution / POA).
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