As a general rule, no. The proviso to Section 138 of the Negotiable Instruments Act 1881 requires the notice of demand to be given within thirty days of the payee receiving information from the bank that the cheque was returned unpaid. A notice sent after those thirty days does not create the cause of action the section contemplates, and a complaint resting on it is normally rejected at the very first stage. The reason is simple: the offence is not complete when the cheque bounces, but only when the drawer fails to pay within fifteen days of a valid notice, so no valid notice means no offence.
What the proviso actually says
Section 138 creates the offence, and its three provisos set the conditions. The first requires the cheque to have been presented within its validity and returned unpaid. The second, the one that matters here, requires the payee, or the holder in due course, to make a demand for payment of 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.
Two features of this drafting decide most disputes. First, the clock starts not from the date of presentation, not from the date written on the cheque, and not from the date you happen to open your mail, but from the date the payee receives information from the bank of the dishonour. Second, the requirement is a condition precedent to the offence, so a notice outside the period leaves nothing for a complaint to stand on.
From which date do the thirty days run?
The thirty days run from the date the payee receives the bank's memo or intimation of dishonour. Where the memo bears a date, that date is usually taken as the date of information, unless the facts show the payee actually received it later. Where the intimation comes through the bank's system, message or statement, the date of actual receipt on the payee's side is what the payee should be able to show. This is why the first practical step is to preserve the return memo and any covering letter or bank message, with the date clearly visible.
It is common for people to confuse the thirty days from the memo with the three-month validity of the cheque. These are separate clocks. The cheque must be presented within three months of the date written on it, a period the Reserve Bank of India reduced from six months with effect from 1 April 2012; the notice must then follow within thirty days of the receipt of the return memo.
Is the thirty-day period mandatory or only directory?
Courts have consistently treated the thirty days as a mandatory condition of the offence rather than a mere formality. The consequence is that a late notice cannot be rescued by a generous interpretation of the words of the section. This is different from the position on filing the complaint. Section 142(1)(b) requires the complaint itself to be filed within one month of the cause of action, but the proviso to that clause expressly allows the court to take cognizance of a complaint filed later if the complainant satisfies the court that there was sufficient cause for the delay. That express power of condonation applies to the complaint's one-month period, not to the notice's thirty days. Confusing the two is the single most common error in these matters.
| Step | Period | Can delay be condoned? |
|---|---|---|
| Presentation of the cheque | Three months from the date on the cheque | No; beyond validity the cheque cannot be presented |
| Notice of demand | Thirty days from receipt of the return memo | Generally no; it is a condition precedent to the offence |
| Payment window for the drawer | Fifteen days from receipt of the notice | Not applicable; the offence arises only if it lapses |
| Filing the complaint | One month from the cause of action | Yes; the court may condone delay on sufficient cause |
What happens if the thirty days have already passed
The criminal route under Section 138 is usually closed once the window is missed and no valid notice was given. The payee cannot cure the defect by sending a notice late and back-dating the facts, and attempting to do so invites trouble. What remains depends on whether the underlying debt can still be enforced and whether there is a fresh cause of action.
- A civil suit for recovery. Dishonour does not extinguish the debt. A suit to recover the amount due can be filed within the general limitation of three years from the date the cause of action arose. For a claim on a written obligation a summary suit may be available, and the defendant then needs leave of the court to defend.
- A fresh presentation of the same cheque. If the cheque is still within its three-month validity, it can be presented again. A second dishonour on that presentation gives a fresh thirty-day period to issue a notice, and the complaint can proceed on the fresh cause of action.
- A fresh cheque or written acknowledgment. If the drawer issues a fresh cheque against the same debt, or acknowledges the liability in writing, the position changes and a new dishonour can support a complaint. Any acknowledgment should be obtained properly and not by pressure.
- Recovery through other routes. Where the drawer is a company, a statutory demand and a winding-up route may be considered in large claims, and other contractual remedies may exist. Which of these fits depends heavily on the documents.
Because these options turn on the exact dates and the papers, the practical step is to place the return memo, the cheque and the ledger or invoice before an advocate before deciding whether a fresh presentation or a civil recovery suit is the right course. Our guide to legal action for a bounced cheque sets out both routes side by side.
Does the cheque's validity affect a fresh notice?
It does, decisively. A cheque is normally valid for three months from the date written on it. Once that period expires, the bank will not honour it and the cheque cannot be presented again, so no fresh dishonour and no fresh notice is possible. If the thirty days have passed on a cheque that has also outlived its validity, the Section 138 route is over and only the civil remedy remains. This is why the notice should not be kept pending in the hope of an informal settlement; the window is short and unforgiving.
Practical ways to avoid missing the window
Most missed deadlines are not deliberate. They happen because the payee waits to see whether the drawer will settle the matter informally, and by the time that hope fades the thirty days have run. A few habits close the gap. Ask the bank for the return memo on the day of dishonour rather than waiting for the monthly statement, because the clock runs from the receipt of the information, and note the date of receipt on the memo itself. Diary the thirty-day and fifteen-day dates at once. Keep a draft of the notice ready so that it can be despatched as soon as the memo is in hand, and use registered post or speed post with acknowledgement due so that service can be proved. If you are pursuing several cheques from the same person, track the dates separately, because each dishonour has its own clock. And if the amount is large, do not treat the notice as a bargaining chip to be held back; it is the step that opens the criminal remedy, and once the window closes that remedy is gone.
It also helps to remember that the notice and the complaint are two separate deadlines. Payees who preserve the notice carefully still lose the complaint by delaying the filing, believing that the one month runs loosely from the end of the fifteen days. Mark the day the fifteen days end as the first day of that month, and file well before it expires.
A word on the dated procedure
The cheque-bounce offence has always sat in the Negotiable Instruments Act 1881 and was not affected by the replacement of the Code of Criminal Procedure 1973 by the Bharatiya Nagarik Suraksha Sanhita 2023 on 1 July 2024. That change affects criminal procedure generally, and a Section 138 complaint is now filed under the BNSS, but the three provisos to Section 138 that fix the thirty-day and fifteen-day periods are unchanged. Readers who knew these cases as "138 CrPC matters" will find the substance the same.
Checking your dates before you act
Before assuming you are too late, work out three dates on paper: the date on the cheque, the date the bank returned it unpaid, and the date you actually received the return memo. If the notice went out within thirty days of the third date, you are likely within time and should move quickly on the complaint. If it did not, the discussion above applies. If you are unsure which of the two situations you are in, a short consultation to map the dates is far cheaper than a dismissed complaint or a time-barred suit, and you can reach the office through the Kolkata advocate's page.