Cheque dishonour in Kolkata: what the file actually has to prove
Most cheque dishonour matters that reach a Kolkata court are not really about whether a cheque bounced. Everyone agrees the cheque bounced; the bank return memo says so in one line. The contest is almost always about why the cheque was given, whether the debt behind it existed on the date of its presentation, and whether the statutory notice was drafted and served in a way that survives cross-examination eighteen months later. A complaint under Section 138 of the Negotiable Instruments Act, 1881 that is filed without a clear paper trail of the underlying transaction tends to stall at the defence evidence stage, long after the client has spent money on four or five hearings.
The statutory framework in one place
The offence is created by Section 138 and the machinery sits in Sections 138 to 148. Three provisions do most of the work in court: Section 139, which raises a presumption that the holder received the cheque for discharge of a debt or liability; Section 118, which presumes consideration; and Section 143, which directs summary trial. Sections 143A and 148 deal with money — interim compensation during trial, and a minimum deposit when a convicted person appeals. Section 147 makes the offence compoundable, which is why a large proportion of these cases end in a negotiated settlement recorded before the magistrate rather than in a judgment.
The five ingredients a complainant must establish
- The cheque was drawn by the accused on an account maintained by him with a banker, for payment of a certain sum of money to another person.
- It was presented within the period of its validity — three months from the date written on it, unless the cheque itself specifies an earlier date.
- It was returned unpaid, either for insufficiency of funds or because it exceeded the arrangement with the bank.
- Written demand was made within thirty days of receiving information of dishonour from the bank.
- The drawer failed to pay within fifteen days of receiving that demand, and the complaint was filed within one month of the day that cause of action arose.
The procedure, step by step
- Preserve the return memo and the bank advice. Collect the original cheque, the cheque return memo, and the bank's intimation — by SMS, email or letter. The date on that intimation starts the thirty-day clock, and in practice the accused will dispute it. Keep the envelope if the intimation came by post.
- Issue the demand notice. It must be a written demand for the cheque amount, addressed to the drawer at the address in the bank's records and at his known residence or place of business, and sent within thirty days of the dishonour intimation. Send it by registered post with acknowledgement due and, additionally, by speed post or courier, so that you have two independent proofs of dispatch.
- Wait out the fifteen days. The drawer has fifteen days from receipt of the notice to pay. A complaint filed before that period expires is premature and will be dismissed, though the complainant may file afresh. If the drawer pays within the fifteen days, the cause of action disappears entirely.
- File the complaint within one month. The complaint is filed before the jurisdictional magistrate, accompanied by the original cheque, the return memo, the office copy of the notice, the postal receipts and the acknowledgement card, and an affidavit of the complainant under Section 145.
- Record the sworn statement. The magistrate examines the complainant on oath, satisfies himself that there is prima facie material, and issues summons. Some courts take cognizance on the affidavit itself; others insist on a short oral examination.
- Appearance, plea and defence. The accused appears, is supplied copies of the complaint and documents, and is asked to plead. A plea of not guilty opens the defence, which is entitled to notice of the complainant's evidence before it is recorded.
- Complainant's evidence. Examination-in-chief is by affidavit under Section 145, followed by cross-examination. This is the stage where the underlying transaction is tested — invoices, ledgers, delivery challans, WhatsApp messages, bank statements showing prior payments.
- Defence evidence, arguments and judgment. The accused may lead evidence, including by summoning bank officials. Arguments follow, and the magistrate delivers judgment. A conviction carries imprisonment up to two years, or a fine up to twice the cheque amount, or both.
Documents to assemble before the first sitting
- The original dishonoured cheque, with the bank's return memo stamped on it.
- The bank's dishonour intimation, whether by SMS, email or letter, with the date visible.
- Bank statement of the complainant's account showing presentation and return.
- The office copy of the demand notice, signed and dated.
- Postal receipts, courier receipts and the acknowledgement card, or the returned envelope marked "unclaimed" or "refused".
- The invoices, bills, ledgers, delivery challans or loan documents that establish the debt.
- Correspondence — email, WhatsApp, SMS — in which the accused acknowledged the amount.
- GST invoices and returns where the transaction was a supply of goods or services.
- The complainant's PAN, address proof and, for a company or firm, the board resolution or authority letter.
- Details of any part payment made after dishonour, with the date and mode.
Timelines and money: what to expect
| Stage | Statutory or usual period | What it costs in practice |
|---|---|---|
| Demand notice after dishonour | Within 30 days of the bank's intimation | Drafting and dispatch typically billed as a fixed fee, often in the range of a few thousand rupees, plus postal charges |
| Drawer's period to pay | 15 days from receipt of notice | No cost to the complainant |
| Filing of complaint | Within 1 month of cause of action | Court fee is nominal in most magistrates' courts; professional fee depends on the cheque value |
| Service of summons | Typically 4 to 10 weeks in Kolkata | Process fee and, if needed, substituted service by publication |
| Trial to judgment | Commonly 18 months to 4 years where contested | Per-hearing fee or a stage-wise package; the fee depends on the number of hearings |
| Interim compensation | Up to 20 per cent of the cheque amount, on application during trial | Payable by the accused; recoverable as a civil decree if unpaid |
| Appeal against conviction | Within 30 days, with a deposit of not less than 20 per cent of the fine or compensation | Separate appellate fee; the deposit is a condition of hearing the appeal |
Where these cases actually break down
Other defences that genuinely succeed include: the debt was time-barred when the cheque was issued, so there was no legally enforceable liability; the cheque was materially altered, for instance the amount or the payee's name was changed; the notice was never served and the complainant cannot prove service; the complaint was filed beyond one month without an application for condonation; the complainant is not the holder in due course, typically because the cheque was endorsed without consideration; and, in company matters, the absence of a proper demand against the directors who are sought to be made vicariously liable.
Kolkata forum practice
Territorial jurisdiction follows the bank branch where the payee's account is maintained and the cheque was presented for collection. In practice, a complainant banking in the Burra Bazar, Strand Road, Brabourne Road or Dalhousie Square belt will usually find the complaint listed before the Chief Metropolitan Magistrate, Kolkata, whose court complex at Bankshall Street handles a very heavy volume of Section 138 matters. Complaints arising from accounts maintained in Alipore, Bhowanipore, Tollygunge or the southern fringes typically go before the Additional Chief Judicial Magistrate or the district court at Alipore. Matters from Salt Lake, New Town, Barasat and the northern suburbs are filed in the North 24 Parganas courts.
Can I file in Kolkata if the cheque was issued in another state?
Usually yes, if the cheque was presented through a Kolkata bank branch where the payee holds the account. The place of presentation and collection generally governs jurisdiction, not the drawer's address. That said, the accused may challenge jurisdiction at the threshold, so the complaint should plead the branch details and attach the statement showing collection at that branch.
Is a cheque given as security covered by Section 138?
It can be, if the liability it secures had crystallised and was legally enforceable on the date of presentation. A security cheque presented after the underlying obligation matured is treated differently from one presented while the account was still running and no sum was due. The facts of the underlying contract decide the answer, which is why the ledger and the correspondence matter more than the cheque itself.
What if the accused pays after the complaint is filed?
The offence is compoundable under Section 147, so a settlement can be recorded before the magistrate and the proceedings closed. Payment after conviction does not automatically erase the conviction, though it is a strong mitigating factor in appeal and may support an application for suspension of sentence. It is always better to settle before the plea is recorded.
Can I recover the money without a criminal case?
Yes. A summary suit under Order XXXVII of the Code of Civil Procedure is available where the claim rests on a written contract or a dishonoured cheque, and it is often faster than a criminal trial for a straightforward commercial debt. Many clients run both tracks, using the criminal complaint as leverage and the civil suit to obtain an executable decree. The choice depends on whether the goal is punishment, recovery, or both.
How long do I have to file the complaint?
One month from the day the fifteen-day period after service of notice expires. Delay can be condoned on a sufficiently explained application, but condonation is discretionary and should never be relied on as a plan. If the thirty-day notice window has already closed, a fresh notice is not a cure — the cause of action has to be founded on a valid notice within time.
If you are holding a dishonoured cheque in Kolkata, or have received a notice and are weighing your reply, Advocate Panchanand Shaw at 14 Hare Street, Kolkata 700001, opposite Bankshall Court, can review the documents and set out the realistic options before any filing is made.