Section 138 of NI Act, 1881: All you need to know about Cheque Bounce Notice

If a person draws a cheque in favour of another, and the same cheque is returned when produced before the bank for encashment, it is legally termed as cheque dishonour and cheque bounce in general terms. Section 138 of Negotiable Instruments Act, 1881 [‘NI Act'] provides for criminal provision regarding a cheque bounced due to insufficiency of funds.

When a cheque bounces due to insufficiency of funds in the drawer's amount, it is punishable under Section 138 of the NI Act. However, one of the most important formalities to be followed under the said provision is the legal notice for cheque bounce. A properly served legal notice is a must for maintainability of a case of cheque bounce as laid in Shakti Travel & Tours v. State of Bihar, (2002) 9 SCC 415. Since a Section 138 NI Act notice is important for laying the foundation of a Court case before the Magistrate, it should be drafted in a manner that all facts of the matter are understandable at a glance. Major aspects related to a legal notice under Section 138 of the NI Act have been dealt with on this post.

Cheque Bounce Notice: What is the Rule?

The law regarding legal notice for cheque bounce is available under Section 138 (b) and (c) of the NI Act.

Section 138 (b) of the NI Act provides that

“the payee or the holder in due course of the cheque 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.”

It means that once the payee produces the cheque for encashment/payment and the same gets dishonoured due to insufficiency of funds, the payee has 30 days to serve a legal notice to the drawer of the cheque regarding payment of money.

Section 138 (c) of the NI Act lays that

“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.”

In other words, after receiving a legal notice for cheque bounce, it is the duty of drawer of the cheque to repay the debt amount within a period of 15 days of receiving such notice. Otherwise, the payee gets the right to proceed through the Court of law. Hence, the cause of action arises from the 16th day after serving the cheque bounce notice to the drawer. The Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 explained the cause of action regarding cheque bounce notice, which arises when the drawer fails to pay the defaulted payment after the cheque bounce notice limitation lapses.

Read more…

Cheque Bounce Notice Format

Although the law does not provide for any specific format to be followed for NI Act cheque bounce notice, there are some things which need to be laid out in a very clear and precise manner.

Given below are some of the major pointers to be taken care of while drafting a legal notice for cheque bounce:

• Name and address of the person who drew the cheque, i.e. Drawer;

• Name and address of the person in whose favour such cheque was drawn, i.e. the Payee;

• Information regarding the cheque presented before the bank for payment/ encashment;

• Details of the cheque, i.e. cheque number, date and amount;

• Date on which the cheque was returned;

• Reason for cheque bounce as mentioned in the Return Memo;

• Clarity on debt through the purpose for which the financial transaction was done;

• Clear request for immediate arrangements to be made for payment of the amount;

• Reference of Section 138 of NI Act.

Important Points for Cheque Bounce Notice

There are several things to be taken care of before sending a legal notice for cheque bounce. Given below are some of the pointers for people who are confused about how to send cheque bounce notice so that things go in their own favour in the Court:

• Keep the original copies of the Cheque and Return Memo at a safer place.

• Send the legal notice for cheque bounce through the following modes:

  1. By Post through Registered Post Acknowledgment Due (RPAD)

  2. E-mail through an Advocate

  3. On WhatsApp

• The complainant in a matter of Section 138 of NI Act must be the person in whose favour the cheque was drawn. Hence, the same should be noted while following the cheque bounce notice format.

• Cheque Bounce notice is addressed to the person who drew the cheque which has been dishonoured as per the provisions of Section 138 of NI Act.

• In case of a company, the NI Act cheque bounce is addressed to the company, and the persons responsible for administration and business affairs of such company may also be addressed

• The legal notice for cheque bounce should include the exact amount for which the cheque dishonoured was drawn, however, charges for dishonour or the legal fees may be included.

• Since Section 138 of NI Act focuses upon the financial transaction against a debt, the same should be mentioned for the purpose for which the cheque was drawn. Transaction must comply with the existing laws as well, which means that the purpose for which the cheque was drawn is not against the law.

• Although the law provides for a cheque bounce notice period, the same must be mentioned in the legal notice being served to be on the safer side.

• It may be noted that the limitation period for a legal notice under Section 138 of the NI Act commences at the time of presentation of the cheque for encashment. Hence, if the cheque was first presented and the period has lapsed for serving legal notice, the same may be presented again for encashment so that another cheque bounce memo is received, provided that the validity of the cheque allows so.

Concluding hereby, a well drafted cheque bounce legal notice may save a lot of time and trouble for the person who is already suffering due to a financial interest which is yet to be satisfied.

Frequently Asked Questions

• Can notice under Section 138 of NI Act be sent after 30 days?

In case the initial cheque bounce limitation period has lapsed and the vality of cheque still allows it to be presented before the bank, the same may be produced for encashment so that a fresh return memo is received, which renews the validity for serving cheque bounce notice to the drawer. Otherwise, an application for condonation of delay may explain the reasons due to which the legal notice could not be served in a timely manner.

• What is the notice period of cheque bounce?

Once a cheque bounce memo is received, the payee has 30 days to serve the legal notice. Once the notice is served, the drawer has 15 days to pay the amount.

• How is cheque bounce notice served?

There is no hard and fast rule on how to send cheque bounce notice. However, it is advisable to serve the same in a way that the payee gets enough evidence to produce before the Court that the notice was duly served to the drawer.

• Against whom can a cheque bounce case be initiated?

A cheque bounce notice as well as the case is specifically addressed to the person who drew the cheque. Hence, in cases like companies wherein the juristic person does not sign the cheque, the authorised signatory and the management acting on behalf of such company are the persons against whom a cheque bounce case is initiated. The same must be clear through the legal notice for cheque bounce as well.