How to prepare a complaint under Section 138 of Negotiable Instrument Act, 1881?

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Q. Is there any particular format or series to file complaint according to Section 138 of the Negotiable Instrument Act, 1881?

Section 138 of Negotiable Instruments Act states about the dishonour of cheque for insufficiency of funds in the account. A pleader in whose favour vakalatnama has been executed by the complainant is competent to file the complaint in the court under this Section. There is a format that is used to file a complaint under the Section 138 of the said Act. The complaint is usually filed at a court in the city of location of the bank on which the cheque was issued and is accompanied with an affidavit and relevant original documents to the court. Court after hearing the complainant will issue summons under the said Section 138 of Negotiable Instrument Act. Complainant has to be present and is not exempted from attendance.

List of documents that are to be submitted to court while filing a complaint are:

  • Contract made between complainant and accused;
  • Bill against which dishonour cheque was issued;
  • Delivery challan and acknowledgement;
  • Dishonoured cheque;
  • Bank memo stating reason for dishonour of cheque;
  • Copy of legal notice sent to accused;
  • Proof of dispatch of legal notice;
  • Postal acknowledgement;
  • Vakalatnama in favour of advocate;

Section 142 of the Act states that no court can take cognizance of the offence punishable under Section 138 until and unless a written complaint is made by the payee and it has to be given within 1 month when the cause of action arose in Metropolitan Magistrate Court.

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While preparing a complaint below points to be noted:

  • Holder should give the complaint in writing;
  • Complaint should be filed in a court which has jurisdiction of the drawee bank;
  • Complaint is usually filed by a lawyer;
  • Complaint is filed before Judicial Magistrate of first class or Metropolitan Magistrate;
  • Complaint must be made within 30 days of the date of cause of action.

Saketh India Ltd. v. India Securities Ltd. (10 March, 1999) Supreme Court has explained about the limitation period to file the complaint. In another case Kerala High Court in K. S. Anto v. Union of India (8 July, 1991) held that “Knowledge or reasonable belief, that pre requisite could be statutorily dispensed with in appropriate cases by creating strict liability offences in the interest of the Nation.”

by Sushma Javare.

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Download: Sample  Complaint under Section 138