HOW TO DRAFT A CHEQUE BOUNCE COMPLAINT?

 

In the last 02 shorticles titled “Practical Insights and Stages in a Cheque Bounce Case” [PART 1] and [PART 2], I tried to paint a broad picture of the entire court procedure step-by-step which goes into a cheque bounce matter.

Now, that we have some idea about the court procedure, let us get down to the technicalities on how to draft a Cheque Bounce Complaint u/s. 138 of the Negotiable Instruments Act, 1881.

[Note: Before starting, you may want to read “Step-by-Step Procedure for taking action in a Cheque Bounce offence” to refresh your memory about the events that take place before even drafting a Complaint.]

 

 

 

 

HOW TO DRAFT A CHEQUE BOUNCE COMPLAINT?

Following are the basic points which shall mandatorily go into a Cheque Bounce Complaint draft:

 

1.   THE CAUSE TITLE:

 

a.    COURT NAME: The Name and No. of the Court before which you are filing this Cheque Bounce Complaint –

 

BEFORE THE LD. METROPOLITAN MAGISTRATE

17^th COURT AT BORIVALI, MUMBAI

 

b.   NAME & DETAILS OF PARTIES: The full name, full address, age and occupation of both parties, i.e. the Complainant and the Accused person, is to be mentioned.

 

Mr. ABC XYZ

Age: 25 yrs; Occ: Service

Residing at: 12/34, AB C.H.S,

XYZ Road, Mumbai            …Complainant

 

Versus

 

Mr. DEF GHI

Age: 23 yrs; Occ: Business

Residing at: 122/324, BV C.H.S,

PQR Road, Mumbai             …Accused

 

However, in case the Cheque was issued by a Company (i.e. artificial entity), you must add other relevant officers of the Company, including Directors, as Accused parties in the Cause Title of the case in the following manner: [Read Section 141 of Negotiable Instruments Act, 1881].

 

Mr. ABC XYZ

Age: 25 yrs; Occ: Service

Residing at: 12/34, AB C.H.S,

XYZ Road, Mumbai        …Complainant

 

Versus

 

1)   QWERTY CO. PVT. LTD. 

Office address at:

G-64, HIJ Road,

STU Road, Mumbai

 

2)   Mrs. DEF IJK 

(Managing Director of Acc. No. 1)

Age: 23 yrs; Occ: Service

Residing at: 122/324, BV C.H.S,

PQR Road, Mumbai           …Accused

 

2.     SUBJECT OF CHEQUE BOUNCE COMPLAINT shall include the exact section which empowers the Complainant to file the present Cheque Bounce Complaint before a Magistrate Court (i.e. Section 138 of N.I. Act).

 

COMPLAINT UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 AGAINST THE ABOVEMENTIONED ACCUSED PERSONS

 

However, in case the Accused is a Company, then Section141 must also be mentioned along with Section 138, in the following manner:

 

COMPLAINT UNDER SECTION 138 READ WITH SECTION 141 OF THE NEGOTIABLE INSTRUMENTS ACT, 1881 AGAINST THE ABOVEMENTIONED ACCUSED PERSONS

 

 

3.   BODY OF THE CHEQUE BOUNCE COMPLAINT: In order to clearly reiterate the broad points which ought to be present in the Cheque Bounce Complaint are follows:

 

a.   CONTENT FROM THE DEMAND NOTICE: Essentially, the major portion of a Cheque Bounce Complaint is the content of the ‘Demand Notice’ which was sent earlier to the Accused Person. However, the sense of chronology should strictly be maintained while drafting a Cheque Bounce Complaint, as mentioned below:

(i)      Introduction: A general introduction stating the age, occupation, residential status and citizenship of both parties must be done separately.

(ii)    Relation: The relationship between the Complainant and Accused must be mentioned, and; the fact as to how both parties got to know/meet each other must be mentioned;

(iii)   Prior Relevant Transactions (if any): If there were any prior business/non-business transactions between the parties, which are related to the present case, then the chronology must start from thereon;

[Note: It is always advisable to put details of the transactions in a Table format, in case the transactions are more than one];

(iv)    Debt: The fact as to how the debt arose against the Accused must be mentioned;

(v)      Debt became Due: The date on which the debt became due against the Accused must be mentioned; 

(vi)    Cheque Details: The detailed information about the Cheque(s) which was issued by the Accused, including the Bank Name; Name of the Drawer of the Cheque; the Cheque Number, and; Date of Cheque [Put this information in a Table];

(vii)  Reason for issuing Cheque: The reason behind issuing the Cheque must be mentioned, such as whether it was issued towards Security payment, or towards any business transaction, or towards a Loan or towards some other transaction;

[Note: All the reasons mentioned above point towards some or the other form of DEBT which was taken by the Accused. When such Debt becomes due, it is known as “Legally Enforceable Debt” in legal language, and is one of the most essential ingredient to be proved in Cheque Bounce Cases.

 

(viii)    Name & Address of Bank and other Cheque Deposition details: The name and address of the Bank in which the Cheque was deposited and the date on which the Cheque was deposited in that Bank is to be mentioned;

[Note: The jurisdiction of the Court, where this Cheque Bounce Complaint is to filed, depends entirely upon the address of the Bank where the Cheque is bounced, and not where the cheque was deposited. Generally, it is always the bank where the Complainant maintains his/her bank account.] 

 

(ix)    Date of Cheque Bounce: The date on which the Cheque got dishonored from the Bank;

(x)      Reason of Cheque Bounce: The reason for which the cheque got dishonoured (i.e. the reason mentioned on the Return Memo, for eg. “Funds Insufficient” etc.); 

(xi)    Demand Notice details: The fact that a Demand Notice dated ‘so-and-so’ was sent to the address of the Accused via Registered Post OR any other medium must be mentioned.

(xii)  Receipt of Demand Notice by Accused: The fact that the Demand Notice has been received by the Accused person on ‘so-and-so’ date, as being reflected on the Track Report of the Registered Post.

[Note: In case the Accused refuses to take the Post from the Post-Master, the remark “Unclaimed” or “Refused” is mentioned in the Track Report, which in legal parlance is considered to be a fair service upon the Accused.]

 

b.   LEGAL SUBMISSIONS: Legal Submissions are merely paragraphs which mentions the ingredients of the offence of cheque bounce under section 138 of N.I Act and also mention the formal paragraphs such as related to “Jurisdiction” “Limitation Period” etc. You may require some help from a lawyer for this. The ingredients which needs to be pointed out under legal submissions are as follows:

 

(i)       That the Cheque was issued towards a legally enforceable debt;

(ii)      Jurisdiction: As the Bank where the cheque is dishonored comes under the jurisdiction of the present Magistrate, therefore, this Magistrate has the jurisdiction to admit and decide this Complaint.

(iii)    Limitation: That all statutory compliances have been fulfilled by Complainant within time limitation as mentioned under Section 138 of N.I. Act;

 

c.    DOCUMENTARY PROOFS/ EXHIBITS: Copies of the relevant evidences must be attached along with in the form of “Exhibit A”… “Exhibit B”… “Exhibit C” and so forth. Following mandatory evidences are mandatory in a Complaint :-

(i)       Copy of Bank/Account Statement evidencing ‘Legally Enforceable Debt’ of the Accused;

(ii)      Copy of Cheques;

(iii)    Copy of Cheque Return Memo;

(iv)     Copy of Demand Notice sent to the Accused;

(v)      Postal Receipt & Track report evidencing the service of Demand Notice upon the Accused; and

(vi)     Copy of Reply to Demand Notice (if any).

 

4.   PRAYER: This should contain the exact reason about what do you want from this Court through this Complaint. In a usual case of Cheque Bounce, the Prayers should be as follows:

a.    To issue process u/s. 204 CrPC, and summon Accused before this Court to stand trial for the commission of the offence U/s. 138 of the Negotiable Instruments Act, 1881; and

b.   To impose maximum punishment and maximum fine upon the Accused u/s. 138 N.I. Act.

 

 

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NEXT BLOG ON:

WHAT ARE THE OTHER APPLICATIONS REQUIRED TO BE FILED DURING A CHEQUE BOUNCE CASE?

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ABOUT THE AUTHOR

Advocate Shreyas Jain, being a legal practitioner based in Mumbai, specializes in Criminal Law and primarily deal with criminal matters placed before Metropolitan Magistrates and Session Courts at Mumbai & Thane. Mr. Jain is a first generation lawyer and believes in working and excelling at the ground level before going big. You may reach him at +91-7054407778 or through his e-mail jainshreyas1995@gmail.com

 

NOTE: VIEWS MENTIONED IN THE ARTICLE ABOVE ARE PERSONAL AND HAS NOTHING TO DO WITH ANY PERSON, PLACE, ORGANISATION OR ANY OTHER FALLING UNDER THE DEFINITION OF ‘PERSON’ UNDER INDIAN PENAL CODE, 1860.