The Process Of Prosecution & Criminal Trial Against Dishonour of A Cheque Under Section 138 of NI Act
If the Cheque presented before the bank is bounced for insufficient fund, exceeds the arrangement made with the bank or some other reasons, the demand notice to be send for payment within 30 days from the cheque bounce date. If the other party failed to comply the Advocate notice (usually in 15 days) then a complaint under section 138 of negotiable Instrument Act, against the drawer within 30 days from the date of expiry of 15 days specified the Advocate legal notice, should be filed in the concerned magistrate court within the jurisdiction.
The timeline of Section 138 of Negotiable Instrument Act 1881 (cheque bounce) case trial usually takes an average of 12 to 18 months to complete the proceedings before trial court. However, in case of Fast Track Court proceedings the trial may complete earlier than 18 months.
Under Section 143 of NI Act, cases of dishonour of cheques may be tried summarily as per the procedure define under Sections 262 to 265 of the Criminal Procedure Code, 1973 (“CrPC”)
In the case of Section 138 of Negotiable Instruments Act, 1881, we have tried to explain Process and Different Stages of Cheque Bounce Case Trial in the flowing Stages:-
First Stage: Filing of Complaint Before Court of Competent Jurisdiction:
Filing of complaints u/s 138 of The Negotiable Instruments Act with Metropolitan Magistrate Assistant Metropolitan Magistrate.
The complaint should be filed Complain before the Trial Court with supporting documents such as Returned Cheque with Cheque Returning Memo, Advocate Legal Notice with Acknowledgment for the receipt or delivery, Reply notice and proof for liability such as Sales invoices, promissory note, Agreement, Account Statement etc., If the courts finds prima-facie a case is made out, then the complainant will be called to make (Affidavit) sworn statement before the court.
Note:- 1. within 30 days of the expiry of the notice as per section 142 of NI Act.
- Marking of the case to the Magistrate of Appropriate Area Jurisdiction as per section 143 of NI Act.
Second Stage:Sworn Statement of Complainant (Affidavit):
As per section 145 of NI Act Take preliminary evidence of the witnesses present support of the complaint by an affidavit of the complainant in the support of the complaint.
The complainant or his authorized agent should appear in the witness box and provide relevant details for filing the Cheque Bounce case.
Third Stage : Hear the Arguments or Adjourn The case for Arguments
If the court is satisfied and finds substance in the complainant, then the Summon/ Bailable Warrant/Arrest warrant will be issued to the respondent to appear before the Court.
Fourth Stage:Appearance of Respondent:
The respondent shall appear in court in person or through his Counsel. The court will verify whether the summon issued by the court is received by the respondent. In spite of the receipt of summon, if the respondent failed to appear before the court then the the court will issue an Bailable Warrant/Arrest warrant against him. The responded/accused apply Grant to bail and finishing to Bond of Surety
Accused Plead Guilty:- The court will enquire the respondent whether he admits the charges made by the complaint. In case of admission of guilty, the court will post the matter for Conviction.
Accused Plead Not Guilty:- If the respondent/Accused, denies the charges then he will be served with the copy of complaint and he will be directed to submit his version of defence.
Fifth Stage:Examination in Chief:
The Complainant shall present his evidence by way of affidavit or oral and produce all documents including the original in support of (Cheque Bounce) complaint. The complainant can also present his witnesses in support of Cheque Bounce case.
Sixth Stage: Cross Examination
Section 311 of Criminal Procedure Code, 1973, Complaint under section 138 of N.I Act – Cross-examination of complainant is closed by Court – (one opportunity is granted to petitioner in an application under section 311 CrPC to cross-examine complainant)
The complainant will be cross examined by the respondent or his counsel for the regarding case. The other witnesses of Cheque Bounce Case appeared in support of the complainant will also be cross examined in this stage.
Seventh Stage: Défense Evidence:
The respondent will be given an opportunity to leave his evidence. The respondent will also be afforded an opportunity to submit his documents in support of Cheque Bounce case, as well as witnesses in his support. respondent and his witnesses will be cross examined by the complainant. After this, the case is posted for arguments.
The Complainant and the respondent or this counsel shall submit their arguments before the Court. During the argument the counsel may submit the precedents of High courts and Supreme Court in support of their Cheque Bounce case. Usually, a written argument containing a gist of the oral argument is also submitted before the the (M.M/A.M.M) court.
Ninth Stage: Decision By Court:
After the arguments, the case is posted for judgment. if the court finds in favour of the complainant then the respondent will be punished with fine or imprisonment. If the court finds in favour of the Accused, then the court will acquit him.
Appeal Sessions court
If respondent is convicted, he will be subjected to arrest or he can move a petition for suspension his sentence for a period of 30 days, so he can file an appeal before the sessions court (within the jurisdiction.).