Section 138 (Cheque Dishonor Notice)
The notice that has to go out within thirty days of a cheque bouncing. Everything after it runs on a clock, and missing any of the three periods ends the remedy.
- The three statutory deadlines calculated for your dates
- The return memo, the presentation date and the demand all set out
- Sent by a route that proves the drawer received it
- Drafted by experienced lawyers, referencing section 138 correctly
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What a section 138 notice is
The formal demand a payee has to send after a cheque is dishonoured, before any prosecution can begin.
A section 138 notice is used when a cheque has bounced or the payment was not received. It enables the beneficiary to send a notice to the cheque issuer under section 138 of the Negotiable Instruments Act, within thirty days of the cheque being returned or the payment failing.
It is a firm demand: if the payment is not made, the beneficiary will proceed further. What is punishable is the dishonour of the cheque itself, once the statutory conditions are met, not the notice, which is the step that has to be taken before any complaint can be filed.
The notice should refer to section 138 of the Negotiable Instruments Act, state when the cheque was presented, the reason the payment was not realised, and a request to the issuer to arrange payment by an alternative means. It should also state the amount payable and the order details where they are relevant.
- Sent by
- The payee
- The person holding the cheque
- Sent to
- The drawer
- Who issued the cheque
- Governed by
- Section 138
- Negotiable Instruments Act, 1881
- Notice within
- 30 days
- Of the cheque being returned
- Drawer then has
- 15 days
- From receiving the notice, to pay
- Complaint within
- 1 month
- Of those 15 days expiring
- Must state
- The section and the sum
- And the demand
- Sent by
- Registered post
- Proof of service matters
Why this one is worth a lawyer
- The deadlines calculated from your actual dates before anything is drafted
- Your return memo and the cheque read, so the notice states the right ground
- Drafted to satisfy what section 138 requires of a notice
- Sent by a route that proves service, which is what the defence attacks
- Thousands of customers served across every state in India
What the drafting covers
- An urgent consultation call, because the thirty days are already running
- Your cheque, the return memo and the underlying debt reviewed
- The notice drafted by an experienced lawyer, referencing section 138
- The presentation, the return, the reason and the demand all set out
- Guidance on sending it so service can be proved, and on what happens next
Send us the return memo first. Its date is what starts the thirty days, and everything else follows from it.
The three deadlines
Thirty days to send the notice
From the date you receive information from the bank that the cheque has been returned unpaid. Miss it and the section 138 route closes for that presentation.
Fifteen days for them to pay
The drawer has fifteen days from receiving the notice to make the payment. Nothing can be filed during that window: a complaint filed early is premature.
One month to file
If the payment is not made, the complaint must be filed within one month of the fifteen days expiring. This is the deadline people miss, because by then the urgency has passed.
Proof of service throughout
Registered post with acknowledgement due, to the drawer’s correct address. Service is the first thing a defence attacks, and an unprovable notice is no notice.
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What are the deadlines?
Three, and they run one after the other:
- Send the notice within 30 days of being told the cheque was returned unpaid
- The drawer has 15 days from receiving the notice to pay
- If they do not, file the complaint within 1 month of those 15 days expiring
What if I have missed the thirty days?
The section 138 route closes for that presentation. Where the cheque is still within its validity, it can sometimes be presented again, and a fresh return starts a fresh thirty days.
That is a question for the call, because it depends on the cheque and on what has already happened.
Does the cheque have to bounce for insufficient funds?
Not only. The provision covers a cheque returned unpaid because the amount in the account was insufficient, and also one returned because it exceeds an arrangement made with the bank.
A cheque stopped by the drawer can also fall within it, where the stop was not for a legitimate reason.
Can I still recover the money by a civil suit?
Yes. The section 138 proceeding is criminal in character and it does not replace a civil claim for the debt. The two can run in parallel.
What should the notice contain?
A reference to section 138 of the Negotiable Instruments Act, the date the cheque was presented, the reason the payment was not realised, the amount payable, the details of the transaction it relates to, and a demand that the issuer arrange payment by an alternative means.
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The clock started when the cheque came back. Send us the return memo.
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