Draft a Complaint Under

Section 138 of Negotiable

Instruments Act , 1881
(Project Report)

Submitted To :- Submitted By :-

Mr. Vishal Dixit Name :- Srishti Sahu

Assistant Professor Semester :- VIII

Section :- C

Roll No. :-172

B.A.LLB.(Hons.)

Batch XV

Date of Submission :- 16.03.2019

Hidayatullah National Law University,

Post Uparwara, Atal Nagar , Raipur - 493661 (Chhattisgarh)

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 Declaration
I, Srishti Sahu , hereby declare that, this project report entitled, ‘Draft a Complaint under
Section 138 of Negotiable Instruments Act, 1881 ’ submitted to Hidayatullah National Law
University, Raipur is record of an original work done by me under the guidance of Mr.
Vishal Dixit , Assistant Professor, H.N.L.U., Raipur and that no part of this work has been
plagiarized without citations.

_________________
Name :- Srishti Sahu
Roll No. :- 172
Section :- C
Semester :- VIII
B.A. LLB.(Hons.)
Batch XV
Date :- 16.03.2019

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 ACKNOWLEDGMENTS
I, Srishti Sahu, would like to humbly present this project to Mr. Vishal Dixit. I would first
of all like to express my most sincere gratitude to Mr. Vishal Dixit for his encouragement
and guidance regarding several aspects of this project. I am thankful for being given the
opportunity of doing a project on ‘Draft a Complaint Under Section 138 of Negotiable
Instruments Act , 1881’.

I am thankful to the library staff as well as the IT lab staff for all the conveniences
they have provided me with, which have played a major role in the completion of this project.

I would like to thank God for keeping me in good health and senses to complete
this project.

Last but definitely not the least, I am thankful to my seniors and my parents for all
their support, tips and valuable advice whenever needed. I present this project with a humble
heart.

________________
Name :- Srishti Sahu
Roll No. :- 172
Section :- C
Semester :- VIII
BA LLB(Hons.)
Batch XV

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 TABLE OF CONTENTS

Sr. No. Content Page No.

 Declaration i
 Acknowledgements ii
 Table of Contents iii
 Introduction 1
 Objectives of Study 2
 Dishonour of Cheque 3
 Steps in Drafting of a Criminal Complaint 7
 Model Criminal Complaint 8
 Affidavit 10
 Conclusion 11
 Reference 12

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 1. INTRODUCTION

1.1 Meaning of Complaint

The meaning of the word ‘complaint’ in common parlance is a grievance. A harmonious

reading of provisions of the Section 2(d) and 2(r) of Cr.P.C. would indicate that a police
report of a non- cognizable offence after investigation would be deemed to be a complaint
and police officer making such a report be deemed to be complainant.

Section 2(d ) of the Code of Criminal Procedure , 1973 lays down :

" complaint" means any allegation made orally or in writing to a Magistrate, with a view to
his taking action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report.

Explanation.- A report made by a police officer in a case which discloses, after investigation,
the commission of a non- cognizable offence shall be deemed to be a complaint; and the
police officer by whom such report is made shall be deemed to be the complainant;

A bare perusal of definition of Section 2(d), of Cr.P.C. , 1973 , goes to show that it does not
include a police report. So a report, by a police officer sent, after suo motu enquiry in a non-
cognizable offence , to chief Judicial Magistrate does not amount to a complaint.

The word ‘complaint’ has a wide meaning since it includes even an oral allegation. It may,
therefore , be assumed that no form is prescribed which the complaint must take. It may only
be said that there must be an allegation which prima facie discloses the commission of an
offence with the necessary facts for the Magistrate to take action. Section 190(1)(a) , Cr.P.C.
makes it necessary that the alleged facts must disclose the commission of an offence.

1.2 Essentials of a Complaint

The following conditions must be satisfied for a document to be known as Complaint:-

1. It must be made to a Magistrate;

2. It must be made with a view to his taking action under the Code;
3. It must contain an allegation that some person, whether known or unknown , has
committed an offence;
4. It must not be the report of a police officer.

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Explanation to clause (d), however mentions that a report made by a police officer in a case
which discloses, after investigation, the commission of a non- cognizable offence shall be
deemed to be a complaint.

The definition of complaint is thus quite ample and adequate and means, in brief, the
allegation made to a Magistrate, with a view to his taking action under the law, that a person
has committed an offence.

1.3 Form of Complaint

The definition makes it clear that no form is prescribed for the document which may be
moved before a Magistrate to take action. In order that it may be treated as complaint it
should contain the allegation that a person known or unknown has committed an offence and
action be taken against him. Therefore, an application if it contains the requisite allegations
can also be treated as a complaint.

A complaint must contain a statement of facts relied on as constituting the offence in ordinary
and concise language with as much certainty as the nature of the case will admit.

1.4 Objectives of Complaint

 To understand the meaning of Complaint

 To understand the meaning of Dishonour of Cheque under Section 138 of Negotiable
Instruments Act, 1881
 To understand the steps involved in drafting of a complaint.
 To learn how to draft a complaint under Section 138 of Negotiable Instruments Act ,
1881 by means of Sample Model Draft .

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 2. Dishonour of Cheque – Section 138 of
Negotiable Instruments Act , 1881

Section 138 of Negotiable Instruments Act , 1881 :-

Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque
drawn by a person on an account maintained by him with a banker for payment of any
amount of money to another person from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is insufficient to honour the cheque or
that it exceeds the amount arranged to be paid from that account by an agreement made with
that bank, such person shall be deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished with imprisonment for [a term
which may be extended to two years], or with fine which may extend to twice the amount of
the cheque, or with both: Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on
which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand
for the payment of the said amount of money by giving a notice in writing, to the drawer of
the cheque, [within thirty days] of the receipt of information by him from the bank regarding
the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the
payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of
the receipt of the said notice.
Explanation.— For the purposes of this section, “debt or other liability” means a legally
enforceable debt or other liability.]

2.1 What is a Cheque ?1

Section 6 of Negotiable Instruments Act defines cheque as :

1
https://www.vakilno1.com/legal-faq/dishonour-of-cheque-section-138-of-the-negotiable-instruments-act.html ,
last visited on 15th March , 2019

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 “Cheque“.-A “cheque” is a bill of exchange drawn on a specified banker and not
expressed to be payable otherwise than on demand and it includes the electronic image of a
truncated cheque and a cheque in the electronic form.

2.2 Ingredients of Offence Under Section 138

1. The cheque should have been issued for the discharge , in whole or part, of any
debt or other liability
2. The cheque should have been presented within a period of six months or within its
validity period whichever is earlier.
3. The payee or holder in due course should have issued a notice in writing to the
drawer within 30 days of the receipt of information by him from the Bank
regarding the return of the cheque as unpaid.
4. After receipt of the said notice from the holder in due course, the drawer should
have failed to pay the cheque within 15 days of receipt of the said notice.

2.3 Grounds for Dishonour of Cheque2

“Funds Insufficient” :

Section 138 describes the above ground of insufficient funds in the account of the drawer of
the cheque in the following words:

The amount of money standing to the credit of the account of the drawer on which the
cheque is drawn is insufficient to honour the cheque,
or
The cheque amount exceeds the amount that can be paid by the bank under an
arrangement entered into between the bank and the drawer of the cheque.

However, besides the above, the Courts have also accepted some other heads which though
expressly do not say ‘insufficient funds’ but are implied to mean the same and a cheque
dishonoured on any of these grounds can be used for the purpose of prosecution under section
138 Negotiable Instruments Act. Some of theses grounds are:

2
http://www.mondaq.com/india/x/779880/Crime/Amendment+To+Complaint+Under+Section+138+Of+Negoti
able+Instruments+Act+1881Myth+Or+Reality, last Visted on :- 15th March , 2019

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 1. Account Closed: “ It is an offence under section 138 of the Act – Closure of account
would be an eventuality after the entire amount in the account is withdrawn – It
means that there was no amount in the credit of ‘that account’ on the relevant date
when the cheque was presented for honouring the same”
2. ‘Stop Payment’ instructions:“Once the cheque has been drawn and issued to the
payee and the payee has presented the cheque, ‘stop payment’ instructions will
amount to dishonour of cheque.”
3. ‘Refer to drawer’: “ …….. makes out a case under section 138 of the Negotiable
Instruments Act, 1881 which expression means that there were not sufficient funds
with the bank in the account of the respondent”
4. ‘Not a clearing member”: “Cheque returned with endorsement ‘not a clearing
member’. To attract the provisions of section 138 NI Act, the cheque should be
presented with the bank on which it I drawn- If the cheque is not presented to the
bank on which it is drawn, then provisions of sec 138 would not be attracted. If bank
on which the cheque is drawn is not a clearing member of the Reserve Bank of India
– unpaid return of the cheque would not attract section 138.”
5. Effect of other endorsements: It has been repeatedly held by courts that manifest
dishonest intention of the drawer resulting in dishonour of the cheque would lead to
prosecution under section 138 Negotiable Instruments Act regardless of the actual
ground of dishonour.

2.4 Complaint under Section 138 can be filed by Pleader/ Power of

Attorney Holder

Cognizance of offence of cheque dishonour – No condition precedent that complaint should

have been signed by the payee as holder of cheque – A complaint need not be presented by
complainant himself – Pleader or counsel in whose favour vakalatnama has been executed by
complainant is competent to file complaint.

“Section 142 of Negotiable Instruments Act does not specifically state that the payee or
holder in due course of the cheque shall lodge the complaint himself; the power of attorney
holder who has every authority to sign and act on behalf of the principal can lodge a
complaint under sec 138 NI Act.”

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2.5 Demand Notice3

Proviso to Section 138 NI Act provides as follows:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been, presented to the bank within a period of six months from the date
on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course. of the cheque as the case may be, makes a
demand for the payment of the said amount of money by giving a notice, in writing, to
the
drawer of the cheque, within thirty days of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the
payee or, as the case may be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.

Explanation.-For the purposes of this section, “debt or other liability” means a legally
enforceable debt or other liability.

Supreme Court has held time and again that a cause of action for filing a complaint under
section 138 accrues to the drawee of a cheque only after a notice is issued to the drawer
within the prescribed period after receipt of information by him regarding the dishonour of
cheque and the subsequent failure of the drawer to make the cheque payment within the
prescribed time, i.e. 15 days from the receipt of notice by him.

3
http://www.lawyersclubindia.com/articles/All-question-related-to-section-138-Negotiable-Instrument-Act-
1881-9105.asp , last visited on :- 15th March , 2019

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 3. Steps in Drafting of a Criminal Complaint4

Drafting of a criminal complaint contemplates the following steps in general :

1. Name of the Court;

2. Case No. with order of filing;
3. Name and description of the party filing the case;
4. Name and description of the accused;
5. A heading indicating the nature of the complaint and the law under which it is filed;
6. Body of the facts leading to filing of the case;
7. Nature of the alleged offence, etc.; and
8. Prayer for punishing the accused.

4
http://www.divorcelawyerindia.com/LEGAL%20DRAFTS/DISHONOUR%20OF%20CHEQUE/COMPLAIN
T-AGAINST-CHEQUE-DISHONOUR.HTML , last visited on :- 15th March , 2019

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Model Criminal Complaint under Section 138 of Negotiable
Instruments Act , 1881

IN THE COURT OF THE JUDICIAL MAGISTRATE, FIRST CLASS,

(COURT NO. 2), PUNE AT PUNE

Criminal Complaint No. 172/2019

Shri. Priyank Singh, )

aged 35 years, occupation - business, ) Complainant

resident of 1111 Kasba Peth, )

PUNE 411 011.

Versus

S hr i. A nku sh W a llia )

aged 30 years, occupation - business, ) Accused

resident of 1050 Kasba Peth, )

PUNE 411 01l . )

COMPLAINT UNDER SECTION 138 AND 142 OF

NEGOTIABLE INSTRUMENTS ACT , 1881
Respectfully Showeth:-

1. That the accused issued one cheque bearing No. 005256 dated_24th November ,2018
for a sum of Rs. 10,000/- (Ten Lakh Rupees Only) drawn on 28th November , 2018
for a lawful valuable consideration in discharge of his liability in favour of the
complainant.
2. That the complainant presented the said cheque lastly on 20th January , 2019 which
was returned unpaid by drawee Bank vide returning Memo dated 21st January , 2019
for the reasons ‘Insufficient Funds’. The said cheque was presented within its
validity presented and stood dishonoured on presentation.

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 3. That the complainant got a notice issued through his counsel dated 22nd January ,
2019 under registered AD cover and UPC to the accused demanding the amount of
the dishonoured cheques within 15 days of the receipt thereof which was duly served
upon him on 23rd January , 2019. It is submitted that the Registered cover containing
the notice was received back as unclaimed as the accused has deliberately avoided the
service of the notice, however the notice sent through UPC stood served upon the
accused on 25th January,2019 the copy of notice with postal receipt/ UPC and
envelop containing notice is filed with the complaint.
4. That the accused person has not cared to make the payment of the amount of
dishonoured cheques to the complainant within 15 days as required under the law as
demanded in the notice.
5. That the cause of action for filing the complaint arose to the complainant with in the
jurisdiction of this learned court when the accused failed to make the payment of the
cheques in dispute to the complainant with in 15 days of the receipt of notice.
6. That the accused is guilty of an offence under section 138 of the Negotiable
Instrument Act, 1881 and is liable to be punished under section 142 of the said Act.

It is, therefore, prayed that the accused person be proceeded against and punished in
accordance with law as envisaged under section 142 of the Negotiable Instrument Act
in accordance with law.

Date :- 20th February, 2019 (Signature)

Place :- Pune (Mr. Priyank Singh)

List of Documents Attached:-

1. Original Dishonoured Cheque No. 005256 dated 24th November , 2018 for Rs.
10,000/- (Ten Lakh Rupees Only ) drawn on 28th November , 2018.
2. Original Returning Memos of the drawee Bank dated 21st January , 2019.
3. Copy of Notice dated 22nd January , 2019.
4. Postal and UPC receipt dated 25th January, 2019 and envelop containing notice.

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 AFFIDAVIT

I Priyank Singh s/o Shri. Prahlad Singh aged 35 years, r/o 1111 Kasba Peth,Pune do
hereby solemnly affirm and declare on oath that the contents of the accompanied application
from para 1 to 6 are true and correct to my personal knowledge and belief and that nothing
false is stated therein and also nothing material is concealed there from.

I further declare and verify on oath that the contents of this affidavit are true and correct and
nothing material is concealed there from. Verified at Pune on this 20th day of February,
2019.

Date :- 20th February,2019 (Signature of Deponent)

Place :- Pune (Priyank Singh)

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 CONCLUSION

The meaning of the word ‘complaint’ in common parlance is a grievance. " complaint"
means any allegation made orally or in writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether known or unknown, has committed an
offence, but does not include a police report. The definition of complaint is thus quite ample
and adequate and means, in brief, the allegation made to a Magistrate, with a view to his
taking action under the law, that a person has committed an offence.

A “cheque” is a bill of exchange drawn on a specified banker and not expressed to be

payable otherwise than on demand and it includes the electronic image of a truncated
cheque and a cheque in the electronic form. Section 138 describes the above ground of
insufficient funds in the account of the drawer of the cheque in the following words: The
amount of money standing to the credit of the account of the drawer on which the cheque is
drawn is insufficient to honour the cheque, or The cheque amount exceeds the amount that
can be paid by the bank under an arrangement entered into between the bank and the drawer
of the cheque.

The Criminal complaint drafted under section 138 of Negotiable Instruments Act , 1881 must
be clear , precise and unambiguous. The Complaint must be accompanied with all relevant
documents which forms the ground for commission of the alleged offence . Also the
complaint must be accompanied by an Affidavit.

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 REFERENCES

BOOKS

 Textbook of Drafting , Pleadings & Conveyancing , Dr. N. Maheshwara Swamy , 3 rd

Edition , Asia Law House , Hyderabad, 2017.
 Pleadings , Drafting & Conveyancing , R.N. Chaturvedi , 4th Edition , Central Law
Publications, Allahabad , 2015

ARTICLES

 Amendment To Complaint Under Section 138 Of Negotiable Instruments Act, 1881-

Myth Or Reality?, Varun Sharma & Abhishek Goyal ,
http://www.mondaq.com/india/x/779880/Crime/Amendment+To+Complaint+Under+
Section+138+Of+Negotiable+Instruments+Act+1881Myth+Or+Reality , last visited
on 15th March , 2019
 Dishonour of Cheque – Section 138 of the Negotiable instruments Act ,
https://www.vakilno1.com/legal-faq/dishonour-of-cheque-section-138-of-the-
negotiable-instruments-act.html, last visited on 15th March, 2019

 http://www.lawyersclubindia.com/articles/All-question-related-to-section-138-
Negotiable-Instrument-Act-1881-9105.asp , last visited on 15th March , 2019
 http://www.aaptaxlaw.com/Legal-Formats/Format-of-Complaint-u-s-138-Negotiable-
Instruments-Act-return-of-cheque-Download-Complaint-format.html , last visited on
15th March , 2019
 http://www.divorcelawyerindia.com/LEGAL%20DRAFTS/DISHONOUR%20OF%2
0CHEQUE/COMPLAINT-AGAINST-CHEQUE-DISHONOUR.HTML , last visited
on 15th March , 2019

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