If a Magistrate has convicted you under Section 138 of the Negotiable Instruments Act 1881 for a dishonoured cheque, you can appeal. The appeal against the conviction and sentence ordinarily lies to the Court of Session for the district, and it must be filed within the time fixed by Article 115 of the Limitation Act 1963, which is normally thirty days from the date of the sentence or order. The time is short, so the first two steps are to apply for a certified copy of the judgment and to move for suspension of the sentence.
Where an appeal against a Section 138 conviction lies
A complaint under Section 138 is tried by a Judicial Magistrate or a Metropolitan Magistrate, and the convicted person's right of appeal is statutory rather than discretionary. The governing provision was Section 374 of the Code of Criminal Procedure 1973; from 1 July 2024, when the new criminal codes came into force, it is Section 415 of the Bharatiya Nagarik Suraksha Sanhita 2023. Section 415(3) provides that a person convicted on a trial held by a Magistrate may appeal to the Court of Session. In a cheque-bounce case, where the sentence can be imprisonment up to two years, or a fine, or both, that is the ordinary appellate forum.
Where the conviction was recorded by a Sessions Judge instead, or where the sentence crosses the statutory threshold, the appeal lies to the High Court. For a Kolkata case tried by a city Magistrate, the appeal is filed before the City Sessions Court at Bankshall; a case tried at Alipore or in a district goes to the Sessions Court for that district. A revision to the Sessions Judge or the High Court, and a petition to quash the complaint under Section 528 of the BNSS (Section 482 of the CrPC earlier), are separate remedies. Neither replaces the appeal, because it is the appeal that gives the higher court the power to re-appreciate the evidence and to set aside or alter the conviction and the sentence.
The limitation period for a cheque-bounce appeal
The limitation is set by the Limitation Act 1963 and not by the Negotiable Instruments Act. Article 115 of the Schedule provides that an appeal from any sentence or order, other than an order of acquittal, must be filed within sixty days if it is to the High Court and within thirty days if it is to any other court, which in this case is the Court of Session. Time runs from the date of the sentence or order. Section 12(2) of the Act excludes the time taken to obtain a certified copy of the judgment, so in practice the countdown effectively starts once the copy is ready, but the copy has to be applied for at once and not after a delay.
If the period has already run out, the appellant can ask the appellate court to condone the delay under Section 5 of the Limitation Act by showing sufficient cause. Condonation is discretionary, and the longer the delay the harder it is to explain. It is far safer to file within time than to rely on the court's indulgence, because the appellate court's first question on a late appeal is why the appellant did not act when the judgment was delivered.
Suspension of sentence and bail pending appeal
Filing the appeal does not by itself suspend the sentence. The appellant has to apply to the appellate court for suspension of the sentence and for release on bail pending the appeal. That power is in Section 389 of the CrPC, now Section 430 of the BNSS. The court considers how long the appeal is likely to take, whether the sentence is short, whether the appellant has surrendered or is on bail, and whether the appellant is likely to serve out the whole sentence before the appeal is heard and so render the appeal illusory.
In a cheque-bounce matter the sentence is often short enough that the real stakes are the fine and the compensation rather than prison. Even so, the application is made, because a conviction also carries consequences for the appellant's record and for the Section 148 deposit. The appellate court may impose conditions, including a direction to deposit part of the compensation, before it suspends the sentence, and it may release the appellant on bail with sureties.
The Section 148 deposit of twenty per cent
Section 148 of the NI Act, inserted in 2018, applies only to an appeal by the drawer against a conviction under Section 138. It allows the appellate court to order the appellant to deposit a sum of not less than twenty per cent of the fine or compensation awarded by the trial court. This is in addition to any interim compensation already paid during the trial under Section 143A. The deposit is to be made within sixty days of the order, extendable by up to thirty days on sufficient cause. The court may release the amount to the complainant while the appeal is pending, and if the appellant is ultimately acquitted, the complainant must repay what was released, with interest at the bank rate published by the Reserve Bank of India.
Although the section uses the word may, the Supreme Court has clarified that the deposit is ordinarily to be directed, and that dispensing with it is the exception, to be justified only for reasons the court records. An appellant who genuinely cannot pay the whole amount should place the facts on affidavit and ask for a reduction or a staged deposit rather than ignore the direction, because a default can cost the appellant the suspension of sentence.
Grounds that matter on appeal
- Whether the cheque was issued for a legally enforceable debt or other liability. If the underlying transaction is denied and the complainant cannot prove it, the offence is not made out.
- Whether the statutory notice of demand was given within thirty days of the complainant receiving the bank's memo of dishonour, and whether it was validly served. A defective or late notice breaks the cause of action.
- Whether the drawer was allowed fifteen days from receipt of the notice to pay. The offence is complete only if those fifteen days passed without payment.
- Whether the complaint was filed within one month of the day the cause of action arose, subject to the court's power to condone delay under Section 142 of the Act.
- Whether the presumption raised by Sections 118 and 139 of the Act was correctly applied. The presumption favours the holder of the cheque, but it is rebuttable, and the accused may rebut it on the preponderance of probabilities.
- Whether the sentence and the compensation are proportionate, where the challenge is to the sentence rather than to the conviction itself.
Interim compensation and compounding
Section 143A allows the trial court, during the trial, to order the drawer to pay up to twenty per cent of the cheque amount as interim compensation, and a similar order is possible after conviction. These are interim directions and can be challenged, but they do not decide the case. More useful on appeal is the fact that an offence under Section 138 is compoundable under Section 147. If the parties reach a settlement, it can be recorded before the appellate court as well as the trial court, and the composition of the offence brings the criminal proceedings to an end. In practice a large share of cheque-bounce appeals are resolved this way rather than by a contested judgment.
A settlement does not erase a civil claim unless the parties agree that it does. If the cheque represented a debt, the payee may still have a right to recover the balance through a civil suit, so a deed of settlement should say clearly what is settled and what is not.
Appeals by the complainant after an acquittal
The complainant is not without a remedy if the accused is acquitted. The Supreme Court has held that a complainant in a Section 138 case is a victim, and as a victim may appeal against the acquittal under the proviso to Section 372 of the CrPC, now Section 413 of the BNSS, without seeking special leave. That appeal lies to the court to which an appeal against a conviction would ordinarily lie, which in a Magistrate's case is the Court of Session. The State's own appeal against an acquittal is a different route and needs leave under Section 378 of the CrPC, now Section 419 of the BNSS. If you were the accused and have been acquitted, a complainant's appeal is a real risk and has to be met on the same evidentiary grounds that won the trial.
Filing the appeal in Kolkata and West Bengal
The memorandum of appeal is filed in the Sessions Court that covers the trial court. For a Kolkata trial the filing is before the City Sessions Court at Bankshall; for a trial at Alipore or in a district, it is before the Sessions Court there. The memorandum sets out the grounds of challenge, and it goes in together with an application for suspension of sentence and bail, a certified copy of the judgment and, where the drawer is the appellant, an application dealing with the Section 148 deposit. Where the appellant is in custody, the appeal and the bail application are moved at once. More on how the filing is prepared is set out on our services page.
The e-Courts services let the appellant track the filing and the cause list, and the rules of the Calcutta High Court govern appeals that reach the High Court. A cheque-bounce appeal is rarely a long, technical exercise: the evidence is documentary, and the appellate court decides on the cheque, the bank memo, the notice and its proof of service. That is why the record assembled at the trial stage matters more than anything added later.
The key provisions at a glance
| Step | Provision | What it gives |
|---|---|---|
| Appeal against conviction | Section 415 BNSS (Section 374 CrPC earlier) | Right of appeal to the Court of Session or the High Court |
| Suspension of sentence | Section 430 BNSS (Section 389 CrPC earlier) | Court may suspend the sentence and release the appellant on bail |
| Deposit on the drawer's appeal | Section 148 NI Act | Minimum twenty per cent of fine or compensation |
| Interim compensation at trial | Section 143A NI Act | Up to twenty per cent of the cheque amount during trial |
| Settlement | Section 147 NI Act | Offence may be compounded at any stage |
| Quashing | Section 528 BNSS (Section 482 CrPC earlier) | High Court may quash the complaint |
If you have received a judgment of conviction in a cheque-bounce case, the safe course is to have the judgment read for the grounds that are actually open and to file the appeal and the bail application together. A short consultation can fix the grounds and the deadline. You can book a free consultation or read more about how we work as a lawyer in Kolkata.