If a cheque bounce notice has not been received by the drawer, the case does not necessarily collapse. Where the payee sent the demand notice by registered post or speed post to the drawer's correct address, the law presumes that it was served, even if the cover comes back marked unclaimed, refused or “not known”. A complaint under Section 138 of the Negotiable Instruments Act 1881 normally fails only where the notice was never properly addressed, was never actually put into the post, or went to an address the drawer had already left. The gap between “I did not receive it” and “it was never sent to me” decides most of these matters.
What Section 138 requires before a complaint can be filed
Section 138 of the Negotiable Instruments Act 1881 makes the dishonour of a cheque a criminal offence, but the offence is not complete the moment the bank returns the cheque. The section works through three provisos. The first requires the cheque to have been presented within its validity and returned unpaid for want of funds, or because the payment exceeded the arrangement. The second requires the payee, or the holder in due course, to make a demand for the cheque amount by a written notice to the drawer within thirty days of receiving the bank's memo of dishonour. The third gives the drawer fifteen days from receipt of that notice to pay.
The cause of action, and therefore the offence, arises only if the drawer fails to pay within those fifteen days. If the notice never reaches the drawer at all, and there is nothing to show that it was properly despatched, the drawer has not had the chance the statute gives him, and the complaint cannot stand. That is why the question of receipt is not a technicality but the hinge on which the whole prosecution turns.
It also explains why the notice must be a genuine demand and not a formality. A notice that does not ask for the cheque amount, or that is issued before the bank's memo is received, or that is sent by a payee who has no legally enforceable debt behind the cheque, does not satisfy the proviso even if it reaches the drawer. The court reads the notice, the memo and the cheque together, and a defect in any of them is enough to defeat the complaint.
The presumption that a posted notice has been served
The law does not require the payee to prove that the drawer personally read the notice. Section 27 of the General Clauses Act 1897 provides that where a document is required to be served by post, service is deemed to be effected by properly addressing, pre-paying and posting it by registered post, unless the contrary is proved. Read with the presumption a court may draw under the evidence law — Section 114 of the Indian Evidence Act 1872, now carried into the Bharatiya Sakshya Adhiniyam 2023 — a notice despatched to the drawer's correct address by registered post or speed post is treated as served.
The practical consequence is that a drawer who avoids the postman does not escape liability. If the cover returns with an endorsement such as “refused”, “unclaimed” or “addressee absent, intimation served”, the courts take service as complete. The drawer's plea that he never saw the notice then carries no weight, because his own conduct prevented delivery.
The presumption is not absolute, and it is rebuttable. The drawer can displace it by proving that he was not at the address, that the address belonged to someone else or had been vacated with the payee's knowledge, or that the endorsement on the cover is false. But the burden of rebutting the presumption lies on him, and a bare denial in the witness box is rarely enough.
When a notice is genuinely not received
There are real cases where the notice never reached the drawer, and these are the ones that succeed. A drawer can show that the address on the notice was wrong, or was a place he had left long before, or was the payee's own address rather than the drawer's. He can show that the payee knew the correct address and deliberately sent the notice elsewhere. He can show that no notice was posted at all, and that the “postal receipt” produced is fabricated or undated. He can also point out that a notice issued before the bank's dishonour memo was received, or issued without a genuine demand for the cheque amount, does not satisfy the proviso.
Where the drawer has left the address but the payee had no way of knowing, the position is harder. The presumption of service still operates for the address on record, and the drawer generally cannot benefit from his own failure to keep his address current. The same reasoning applies where the drawer has shifted within the same city without telling the payee or the bank.
A related situation is the notice that was issued but not sent to the drawer at all — for example, sent to the drawer's advocate, or to a family member, or handed to a third party. The statute asks for a notice to the drawer, and a notice to someone else does not start the fifteen-day clock unless it actually reaches the drawer within the meaning the section contemplates.
How the payee proves the notice was sent
A payee who anticipates a denial should build the record from the beginning. The essentials are a copy of the demand notice, the postal or courier receipt showing the drawer's correct address, the tracking or acknowledgement-due slip, and any proof that the address used was the one the drawer gave or that appears in the bank's records. Speed post and registered post track better than ordinary post, and email or WhatsApp copies of the same notice help to answer a plea of non-receipt.
- Keep the original postal receipt and the returned cover if it comes back.
- Note the exact date the bank's dishonour memo was received, because the thirty days run from that date.
- Send the notice to the address written on the cheque or shown in the drawer's bank record, not to an address you merely believe is current.
- Preserve a copy of the memo, the cheque and the ledger or invoice showing the debt.
The timeline that runs from the cheque and the notice
Understanding which clock is running matters, because a missed deadline at one stage cannot always be cured at the next. The table sets out the usual sequence.
| Stage | What must happen |
|---|---|
| Dishonour | Cheque presented within its validity and returned unpaid; payee receives the bank's memo. |
| Demand notice | Written demand for the cheque amount sent to the drawer within thirty days of receipt of the memo. |
| Payment window | Drawer has fifteen days from receipt of the notice to pay; no offence if he pays. |
| Complaint | Complaint filed before the Magistrate within one month of the cause of action, with power to condone delay. |
What the drawer may argue in defence
A drawer facing a complaint has a limited but real set of defences. He can say the notice was never served and that the payee cannot prove despatch to the correct address. He can say the cheque was not issued for a legally enforceable debt or liability — for example, that it was given as security, or for a time-barred claim, or without consideration. He can dispute the signature, or say the cheque was materially altered without his consent. He can also argue that the cheque was presented beyond its validity or that the demand was for an amount larger than the cheque.
None of these defences open automatically. Once the payee shows proper despatch, the burden shifts, and the drawer must bring evidence rather than mere denial. Because the stakes are criminal, the standard the prosecution must meet is proof beyond reasonable doubt, and a weak link in the notice chain is often enough to defeat it.
Where and when to file the complaint
The complaint is filed before a Judicial Magistrate, and the procedure followed is now that of the Bharatiya Nagarik Suraksha Sanhita 2023 (the BNSS), which replaced the Code of Criminal Procedure 1973 with effect from 1 July 2024. Section 142 of the Negotiable Instruments Act requires the complaint to be made within one month of the cause of action, and allows the court to condone delay on sufficient cause being shown. A 2015 amendment fixed the place of trial: the case is heard by the court within whose local jurisdiction the payee's bank branch is situated, which in practice means the court near the bank where you presented the cheque.
For a Kolkata payee that usually means a court near the bank branch through which the cheque was collected. If your case involves a bank in the city, the complaint goes there and not to the court near the drawer's residence, so the earlier practice of filing at the drawer's place no longer applies.
Other remedies if the criminal case is weak
Even if the Section 138 route is doubtful, the money is not necessarily lost. A civil suit for recovery of the debt can be filed within the limitation period of three years. If the cheque is still within its validity, presenting it again and obtaining a fresh dishonour starts a fresh thirty-day period for a fresh notice. In an appeal, Section 148 of the Act requires the drawer to deposit a part of the amount, and Section 143A allows the trial court to order interim compensation during the trial — both of which give the payee some leverage.
If you are unsure which route fits your facts, a short consultation is usually cheaper than a wrongly filed complaint. You can book a free consultation or read the related guides below.
Related reading
For what a criminal case of this kind costs in the city, see lawyer fees in Kolkata. If your dispute is really about property and a document rather than a cheque, the guide on stamp duty on a gift deed to a blood relative in West Bengal explains that separate track. Our services page lists how we handle cheque dishonour and recovery matters.