Most Section 138 notices that fail do not fail on the drafting. They fail on arithmetic — a notice sent from the wrong starting date, or a complaint filed one week too early. Both are fatal, and neither is curable.
This article sets out every deadline in a cheque dishonour matter with the provision or judgment that fixes it, flags the three places practitioners most often go wrong, and ends with a complete demand notice you can copy and adapt. The draft is not gated and there is nothing to sign up for.
The timeline, end to end
Section 138 provisos (a)-(c) and Section 142(1)(b), Negotiable Instruments Act 1881. The presentation window is six months on the face of the statute but three months in practice, because a cheque's period of validity has been three months since 1 April 2012 and the proviso applies whichever is earlier.
| # | Step | Period | Runs from | Authority |
|---|---|---|---|---|
| 1 | Present the cheque | 6 months on the statute; 3 months in practice | date the cheque is drawn | s.138 proviso (a); RBI circular of 4 Nov 2011, effective 1 Apr 2012 |
| 2 | Cheque returned unpaid | — | — | s.138 |
| 3 | Issue written demand notice | 30 days | receipt of information from the bank that the cheque was returned | s.138 proviso (b) |
| 4 | Drawer's window to pay | 15 days | receipt of the notice by the drawer | s.138 proviso (c) |
| 5 | Cause of action arises | on expiry of step 4 | — | s.138 proviso (c) with s.142(1)(b) |
| 6 | File the complaint | 1 month — and not before step 4 expires | date the cause of action arose | s.142(1)(b) |
| 7 | Delay condonable? | Yes, on sufficient cause | — | proviso to s.142(1)(b), in force 6 Feb 2003 |
Where the arithmetic goes wrong
The notice period runs from the bank's information, not the cheque's return. Proviso (b) gives thirty days from "the receipt of information by him from the bank regarding the return of the cheque as unpaid." Not the date on the return memo, not the date the cheque was drawn. If your client learned of the dishonour a week after the memo was issued, that week is yours.
Note also that thirty days is the current figure. It was fifteen until the Negotiable Instruments (Amendment) Act 2002 substituted thirty with effect from 6 February 2003. Precedents and precedent-books older than that will say fifteen, and so will a surprising number of templates still circulating.
The complaint window has a floor, not just a ceiling. This is the trap that destroys otherwise sound matters. Section 142(1)(b) requires the complaint within one month of the cause of action — and the cause of action arises only when the drawer's fifteen days expire. File on day ten and the complaint is not merely early; it is incompetent.
In Yogendra Pratap Singh v. Savitri Pandey, (2014) 10 SCC 713, a three-judge bench held that no complaint can be filed before the fifteen-day period has elapsed, and that the court is "barred in law from taking cognizance of such complaint." Critically, the defect is not cured by the fact that fifteen days have passed by the date the Magistrate applies his mind. The Court left one door open: the payee may file a fresh complaint within one month of the decision in the criminal case.
Six months is not six months. Proviso (a) says the cheque must be presented "within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier." The statute has never been amended. But since 1 April 2012, under an RBI circular of 4 November 2011 issued under Section 35A of the Banking Regulation Act 1949, banks do not pay cheques presented more than three months after their date. A cheque's period of validity is therefore three months, three is earlier than six, and three months is the operative window.
The distinction matters in drafting. A notice asserting that "Section 138 requires presentation within three months" misstates the section. The correct formulation is that presentation was within the cheque's period of validity, which is the earlier of the two limbs.
What has to be true before you send anything
K. Bhaskaran v. Sankaran Vaidhyan Balan, decided on 29 September 1999 by Justices K.T. Thomas and M.B. Shah, still supplies the standard analysis. The offence has five components:
- drawing of the cheque
- presentation of the cheque to the bank
- returning the cheque unpaid by the drawee bank
- giving notice in writing to the drawer demanding payment
- failure of the drawer to pay within fifteen days of receipt of the notice
The same judgment supplies the distinction that decides most service disputes:
"'Giving notice' in the context is not the same as receipt of notice. Giving is a process of which receipt is the accomplishment."
Two further conditions are easy to overlook. The cheque must have been issued for the discharge, in whole or in part, of a debt or other liability — and the Explanation to Section 138 confines that to a legally enforceable debt. A cheque given as a gift, as security for an unenforceable claim, or against a time-barred debt will not sustain the offence. And the complaint must be by the payee or the holder in due course, in writing: Section 142(1)(a).
Service, refusal and the unclaimed envelope
Send the notice by registered post with acknowledgement due, to the correct address, and keep the receipt. That is not ritual; it is what triggers the presumption.
Section 27 of the General Clauses Act 1897 raises a considerably stronger presumption than Section 114 of the Evidence Act. In C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555, a three-judge bench held that where the notice is sent by registered post to the correct address, "unless and until the contrary is proved by the addressee, service of notice is deemed to have been effected at the time at which the letter would have been delivered in the ordinary course of business", and that it is unnecessary to plead separately that the addressee had knowledge of it.
The Court then closed the obvious escape route:
"A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint under Section 138 of the Act, cannot obviously contend that there was no proper service of notice."
Where the envelope is returned unclaimed, K. Bhaskaran treats the date of return as the commencing date for reckoning the fifteen days under proviso (c) — without prejudice to the drawer proving he genuinely had no knowledge.
If the notice lapses, you can present again
A missed deadline on one dishonour is not the end of the matter. In MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177, a three-judge bench overruled Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514, and held:
"prosecution based upon second or successive dishonour of the cheque is also permissible so long as the same satisfies the requirements stipulated in the proviso to Section 138"
So a fresh presentation, a fresh dishonour, a fresh notice and a fresh failure to pay generate a fresh cause of action — even where no prosecution was launched on the first default. The constraint is the cheque's own validity period, which is why the three-month rule in step 1 governs how many attempts you realistically have.
Where to file
Section 142(2), inserted by the Negotiable Instruments (Amendment) Act 2015 with retrospective effect from 15 June 2015, fixes territorial jurisdiction:
- cheque delivered for collection through an account — the branch of the bank where the payee maintains the account;
- cheque presented for payment otherwise than through an account — the branch of the drawee bank where the drawer maintains the account.
This reversed Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, which had confined jurisdiction to the drawee bank's location. In Bridgestone India Pvt Ltd v. Inderpal Singh, (2016) 2 SCC 75, the Supreme Court confirmed that Dashrath Rupsingh "would not stand in the way", the retrospective language in Section 142A applying the new regime to pending matters.
Interim compensation: two rules that look alike and are not
The Negotiable Instruments (Amendment) Act 2018, in force from 1 September 2018, added two provisions that are routinely conflated.
| Section 143A | Section 148 | |
|---|---|---|
| Stage | Trial, before conviction | Appeal, after conviction |
| Amount | Shall not exceed 20% — a ceiling | Minimum of 20% — a floor |
| Payable within | 60 days, +30 on sufficient cause | 60 days, +30 on sufficient cause |
| Applies to pre-2018 complaints? | No — prospective only | Yes |
| Is "may" discretionary? | Yes, genuinely | Generally read as a rule |
The asymmetry is deliberate and the Supreme Court has explained it. Section 143A operates before any finding of guilt, so in Rakesh Ranjan Shrivastava v. State of Jharkhand, 2024 INSC 205, the Court held that "may" there is directory and cannot be read as "shall". Section 148 operates after conviction, and there the same word has been construed as effectively mandatory, with a refusal to order deposit being the exception.
On retrospectivity the split runs the other way from what most practitioners assume: Section 143A is prospective only, because it creates new liabilities before guilt is established; Section 148 applies to appeals even where the complaint was filed before 1 September 2018.
The notice
What follows is a complete demand notice under proviso (b) to Section 138. It is drafted for the common case — a cheque issued against an admitted debt, returned for insufficient funds. Replace the bracketed fields and delete what does not apply.
Two drafting points before you use it. First, plead the legally enforceable debt specifically: what the money was for, when it fell due, and why it is owed. A notice that merely recites the cheque and the dishonour leaves the consideration to be proved later against a statutory presumption the drawer will attack. Second, state the date you received the bank's intimation, because that is the date from which your thirty days run and the first thing the defence will test.
[ADVOCATE'S LETTERHEAD]
Ref. No.: ____________
Date: ______________
BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE
AND BY SPEED POST
To,
[Full name of the drawer]
S/o, D/o, W/o [____________]
[Complete postal address as it appears in your client's records
and on the cheque]
LEGAL NOTICE UNDER SECTION 138 OF THE
NEGOTIABLE INSTRUMENTS ACT, 1881
Sir/Madam,
Under instructions from and on behalf of my client, [Full name of
payee], [S/o, D/o, W/o ______ / a company incorporated under the
Companies Act, 2013 and having its registered office at ______],
residing at / having its office at [complete address] (hereinafter
"my client"), I address you as follows:
1. That my client and you have been [describe the relationship:
e.g. "engaged in business dealings since ______" / "known to
each other since ______"].
2. That [set out the transaction giving rise to the debt with
precision: e.g. "on ______ my client supplied to you goods
under Invoice No. ______ dated ______ for a sum of
Rs. __________/- (Rupees ____________________ only), which
sum became due and payable on ______"]. The said sum
constitutes a legally enforceable debt owed by you to my
client.
3. That in discharge of the said liability, you issued to my
client Cheque No. __________ dated ______ for a sum of
Rs. __________/- (Rupees ____________________ only), drawn on
[name of drawee bank], [branch and address], from Account
No. __________ maintained by you with the said bank
(hereinafter "the said cheque").
4. That my client presented the said cheque for encashment
through his/its bank, [name of payee's bank], [branch and
address], where my client maintains Account No. __________,
on ______, being within the period of its validity.
5. That the said cheque was returned unpaid by the drawee bank
vide Cheque Return Memo dated ______ bearing the reason
"[reproduce the reason exactly as printed on the memo, e.g.
'FUNDS INSUFFICIENT']". My client received intimation of the
said dishonour from his/its bank on ______.
6. That the dishonour of the said cheque establishes that you
had no sufficient funds in the said account to honour the
cheque, and that you have failed and neglected to discharge
your legally enforceable liability to my client.
7. That the said cheque having been issued in discharge of a
legally enforceable debt and having been returned unpaid for
insufficiency of funds, you have committed an offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881.
NOW THEREFORE, by this notice, and in terms of clause (b) of
the proviso to Section 138 of the Negotiable Instruments Act,
1881, I call upon you to pay to my client the sum of
Rs. __________/- (Rupees ____________________ only), being the
amount of the said cheque, WITHIN FIFTEEN (15) DAYS of the receipt
of this notice, by way of demand draft or electronic transfer in
favour of my client.
TAKE NOTICE that in the event of your failure to make payment
of the aforesaid sum within the said period of fifteen days, my
client shall be constrained to initiate criminal proceedings
against you under Section 138 of the Negotiable Instruments Act,
1881, before the competent court, wherein you shall be liable to
be punished with imprisonment for a term which may extend to two
years, or with fine which may extend to twice the amount of the
cheque, or with both, entirely at your own risk as to costs and
consequences.
TAKE FURTHER NOTICE that my client also reserves the right to
initiate such civil proceedings for recovery of the said sum
together with interest and costs as may be available in law.
A copy of this notice is retained in my office for record and
further necessary action.
[Signature]
[Name], Advocate
Enrolment No.: __________
[Address]
[Telephone] [Email]
Adapting it
The paragraph most worth your attention is paragraph 2. Everything else in the notice is mechanical; the description of the underlying liability is where the matter is won or lost, because the drawer's defence will almost always be that the cheque was not issued for a legally enforceable debt. Plead the transaction with the same particularity you would in a plaint.
If the return memo reads something other than insufficiency of funds — "account closed", "payment stopped by drawer", "signature differs" — reproduce it verbatim in paragraph 5 and do not paraphrase it into "insufficient funds". The reason on the memo is evidence, and altering it invites a needless argument.
If your client is a company, the notice should be issued on the authority of a board resolution or a power of attorney, and the complaint will need the authorised signatory pleaded properly.
What Synapse does with this
Every deadline in this article is arithmetic on dates that already exist somewhere in the file: the date on the cheque, the date on the return memo, the date your client told you. The failures are not failures of legal knowledge. They are failures of diary.
Synapse takes those dates out of the consultation and puts them on the case timeline as it happens — so the thirty-day notice window and the fifteen-day payment window are computed from the dates on the record rather than reconstructed later from memory. When the draft is generated, each statutory reference in it opens to the provision it came from, and the authorities are retrieved from an indexed corpus rather than recalled by a language model. Nothing is cited that was not fetched.
The notice above is the standard case. The point of the tool is the matter that is not standard.
Statutory text quoted from the Negotiable Instruments Act 1881 as amended by Act 55 of 2002, Act 26 of 2015 and Act 20 of 2018. This article is general information, not legal advice, and does not create an advocate–client relationship. Verify every provision against the current bare act and read each judgment before relying on it. Court-specific formatting requirements vary: the Supreme Court and the Delhi High Court require Times New Roman 14 at 1.5 spacing, while the Bombay High Court (Original Side) permits Times New Roman or Georgia at double spacing with binding-relative margins.