Of all the charges a magistrate is asked to draft, the one under Section 138 of the Negotiable Instruments Act, 1881 looks the most deceptively simple — a bounced cheque, a notice, a default — and is the most frequently botched. The offence is not the act of issuing a cheque; it is the concatenation of five distinct acts, each of which must be pleaded with date-specific particularity. This chapter builds a model charge from the bare provision upward, anchors every limb to verified Supreme Court authority, and confronts the awkward reality that most Section 138 trials are summons cases where a formal charge is never framed at all. Read it alongside our Framing of Charges hub and the foundational note on the object of a charge as notice to the accused.
The Statutory Anatomy You Are Charging
You cannot draft a charge for an offence you have not dissected. Section 138 of the Negotiable Instruments Act, 1881 penalises the drawer of a cheque drawn on an account he maintains, for payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability, where that cheque is returned unpaid by the bank either because the funds standing to that account are insufficient to honour it, or because it exceeds the amount arranged to be paid from that account by agreement with the bank. The substantive clause is, however, only half the offence. Three provisos convert a civil default into a criminal one, and they are cumulative.
Proviso (a) requires that the cheque has been presented to the bank within a period of three months from the date on which it is drawn, or within the period of its validity, whichever is earlier. Proviso (b) requires the payee or holder in due course to make, by notice in writing, a demand for payment of the said amount of money within thirty days of receiving information from the bank about the dishonour. Proviso (c) requires that the drawer fails to make payment within fifteen days of receipt of that notice. Only when proviso (c) is breached does the offence crystallise. The punishment is imprisonment which may extend to two years, or fine which may extend to twice the amount of the cheque, or both — the two-year ceiling being the product of the 2002 Amendment, which raised it from one year. The Explanation clarifies that "debt or other liability" means a legally enforceable debt or liability, which is why a charge over a time-barred or gratuitous obligation is doomed before it starts.
Bhaskaran's Five Ingredients — The Skeleton of the Charge
The single most useful authority for the draftsman is K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510, where the Supreme Court held that the offence under Section 138 "can be completed only with the concatenation of a number of acts" and enumerated five: (1) drawing of the cheque by a person on an account maintained by him with a banker; (2) presentation of the cheque to the bank; (3) returning of the cheque unpaid by the drawee bank; (4) giving notice in writing to the drawer demanding payment of the cheque amount; and (5) failure of the drawer to make payment within fifteen days of receipt of the notice. The Court stressed that these five acts may each occur at a different place, but their concatenation is a sine qua non for completion of the offence.
That holding is the architectural blueprint of the charge. A charge that pleads dishonour but omits the date of the demand notice, or pleads the notice but not the fifteen-day default, has charged a non-offence. Each Bhaskaran limb must surface as a discrete, particularised averment — the same discipline our note on particulars to be stated in a charge demands of every offence. Bhaskaran's enumeration of ingredients survives untouched; only its separate ruling on territorial jurisdiction was later displaced by Dashrath Rupsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129, itself overtaken by the 2015 Amendment inserting Section 142(2) — a point of venue, not of substance.
Kusum Ingots and the Legally Enforceable Debt
Where Bhaskaran gives the procedural skeleton, Kusum Ingots & Alloys Ltd. v. Pennar Peterson Securities Ltd., (2000) 2 SCC 745 supplies the substantive flesh. The Court there restated the ingredients with a sharper emphasis on the foundational requirement that the cheque must have been issued for the discharge, in whole or in part, of a debt or other liability, and that the drawer must have been liable to pay the amount at the time of presentation. This is the limb a careless charge most often assumes rather than alleges.
The charge must therefore affirmatively recite the legally enforceable debt the cheque was issued to discharge — its quantum, the transaction or account from which it arose, and the date. A bald averment that "the accused issued a cheque which was dishonoured" charges the symptom, not the offence. Because the Explanation to Section 138 confines liability to a legally enforceable debt, the absence of this averment hands the defence a clean discharge argument. Kusum Ingots is the case to cite when a sessions judge is tempted to treat the underlying debt as mere background rather than as a charged ingredient.
The Section 139 Presumption — What the Charge Need Not Prove
A peculiarity of Section 138 is that the prosecution is relieved of proving one ingredient it must nonetheless plead. Section 139 raises a presumption that the holder of a cheque received it for the discharge, in whole or in part, of a debt or liability. In Rangappa v. Sri Mohan, (2010) 11 SCC 441, a three-Judge Bench settled a long-running conflict by holding that this presumption includes the existence of a legally enforceable debt or liability, and is rebuttable only by the accused on the standard of preponderance of probabilities.
For the draftsman this means the charge alleges the legally enforceable debt as a matter of pleading, while the burden of disproving it rests, by statutory reverse onus, on the accused. The charge does not, and should not, recite the presumption — a charge states the accusation, not the evidentiary route to proof. But the magistrate framing it must understand that Rangappa makes the debt-averment robust: the accused who merely denies the debt without leading rebuttal evidence cannot escape. This interplay between a pleaded ingredient and a presumed fact is unique to the cheque-bounce charge and is worth internalising before drafting.
The Notice Limb — Where Charges Collapse
The fourth Bhaskaran ingredient — the written demand notice — is the limb most frequently fatal at trial, and the charge must plead it with surgical dates. Proviso (b) requires a written demand for the said amount of money made within thirty days of the payee receiving information of dishonour. A notice that demands a sum different from the cheque amount, or omits the demand altogether, is no notice in the eye of the law, and a charge resting on it is unsustainable.
On service, C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555 is indispensable. A three-Judge Bench held that where the notice is sent by registered post to the correct address of the drawer, the presumption under Section 27 of the General Clauses Act, 1897 read with Section 114 of the Evidence Act operates, and the drawer cannot defeat the prosecution merely by claiming non-receipt; the burden shifts to him to rebut deemed service. The charge should therefore plead the date of dispatch and the correct address, not merely "notice was served". The notice limb is also where the cause of action's timing lives — the fifteen-day default under proviso (c) is the moment the offence is born, and the charge must fix that date precisely, exactly as our note on the manner in which the alleged offence was committed insists.
Successive Dishonour — Which Default Do You Charge?
A recurring drafting dilemma: a cheque is presented, bounces, re-presented within validity, and bounces again. Which dishonour grounds the charge? In MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177, a three-Judge Bench held that nothing in Section 138 or Section 142 prevents the holder from presenting a cheque any number of times within its validity, and that a prosecution founded on a second or successive dishonour is maintainable so long as the proviso requirements are satisfied afresh. In doing so the Court overruled Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514, which had confined the complainant to the first dishonour.
The drafting consequence is concrete: the charge must specify which dishonour, which notice, and which fifteen-day default it relies upon, because each cycle of presentation-dishonour-notice-default is a self-contained set of ingredients. A charge that conflates the first bounce's dishonour with the second notice's default pleads a chimera. Where the complainant elects to proceed on the later dishonour, the charge's dates must form a single coherent chain answering to that presentation alone.
Charging a Company and Its Officers — Section 141
When the drawer is a company, Section 141 extends liability to every person who, at the time of the offence, was in charge of and responsible to the company for the conduct of its business, as well as to the company itself. The architecture of the charge here is governed by Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, where the Court held that arraignment of the company as an accused is imperative — the company is the principal offender, and vicarious liability of a director or signatory under Section 141 cannot be fastened unless the company is itself prosecuted.
Practically, a charge that names only the managing director or the cheque-signatory, omitting the company, is defective and the prosecution against the officer collapses with it. The charge must also aver the officer's role — that he was in charge of and responsible to the company for the conduct of its business — because Section 141 is a penal provision requiring strict compliance. A boilerplate recital that "the accused is a director" does not satisfy the role-specific averment Section 141 and Aneeta Hada demand. This is vicarious liability pleaded with the same precision a substantive offence requires.
The Inconvenient Truth — Most 138 Trials Frame No Charge
Here the chapter must confront a structural oddity. Section 143 of the NI Act directs that offences under Section 138 be tried as summary cases, applying the summons-case procedure. In a summons case there is, by law, no formal charge. Under Section 274 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the successor to Section 251 CrPC), the magistrate states to the accused the particulars of the offence of which he is accused and asks whether he pleads guilty or has a defence — "but it shall not be necessary to frame a formal charge."
So a "sample charge" under Section 138 is, in the run of summons cases, really a sample substance of accusation. The discipline, however, is identical: the particulars stated under Section 274 must carry every Bhaskaran ingredient, every date, and the legally enforceable debt, precisely because there is no later charge to cure an omission. A magistrate who reduces the substance of accusation to a single boilerplate sentence invites an appellate court to set aside the conviction for failure to put the accusation to the accused — the very vice our note on the form and contents of a charge warns against. The formal-charge machinery resurfaces only where the case proceeds as a warrant case, under Sections 263–264 BNSS.
Model Charge — Individual Drawer
The following is a model charge (or, in a summons case, the substance of accusation to be stated under Section 274 BNSS) against an individual drawer. Bracketed items are particulars to be filled.
"I, [Name], Judicial Magistrate First Class, [place], hereby charge you, [accused], as follows: That you, on or about [date], drew Cheque No. [____] for Rs. [____] on your account No. [____] maintained with [Bank, branch] in favour of the complainant [name], in discharge of a legally enforceable debt, namely [describe debt/transaction and date]; that the said cheque was presented to the bank on [date], being within three months of its drawing; that it was returned unpaid on [date] by memo dated [date] for the reason [insufficient funds / exceeds arrangement]; that the complainant, by written notice dated [date] sent to your correct address, demanded payment of the said cheque amount within fifteen days; that the said notice was received by / deemed served on you on [date]; and that you failed to pay the said amount within fifteen days of such receipt, the default occurring on [date], and you thereby committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, within my cognizance. And I direct that you be tried on the said charge."
Every blank corresponds to a Bhaskaran ingredient. Leave one unfilled and the charge is incomplete on its face.
Model Charge — Company and Signatory
Where the drawer is a company, the charge must name the company as the principal accused and the officer as vicariously liable, satisfying Aneeta Hada. A model formulation:
"That [Company name], a company through whom the cheque was drawn on account No. [____] with [Bank], issued Cheque No. [____] dated [date] for Rs. [____] in favour of the complainant in discharge of a legally enforceable debt [describe]; that the cheque, on presentation within validity on [date], was dishonoured on [date] for [reason]; that statutory notice dated [date] was served on the company and on you, [accused], on [date]; that payment was not made within fifteen days, the offence being complete on [date]; and that you, [accused], being at the time of the offence the [designation] in charge of and responsible to the said company for the conduct of its business, are by virtue of Section 141 of the Act guilty along with the company of the offence under Section 138, within my cognizance."
The role-specific averment — "in charge of and responsible to the company for the conduct of its business" — is not ornamental; it is the jurisdictional fact that Section 141 and Aneeta Hada require, and its omission is fatal to the case against the officer.
Common Drafting Errors That Sink the Charge
Five recurring defects account for most Section 138 acquittals traceable to the charge or substance of accusation. First, omitting the legally enforceable debt — pleading the bounce but not the obligation it discharged, contrary to Kusum Ingots and the Explanation. Second, vague notice particulars — "notice was served" without date, address, or the demanded amount, ignoring the strict-compliance reading of proviso (b) and the deemed-service rule of C.C. Alavi Haji. Third, conflating successive dishonours — mixing the dates of one presentation cycle with the notice of another, contrary to the discrete-cause-of-action logic of MSR Leathers.
Fourth, charging an officer without the company, or without the role-specific Section 141 averment, contrary to Aneeta Hada. Fifth, boilerplate substance of accusation — reducing the Section 274 statement to one undifferentiated sentence, which appellate courts treat as a failure to put the accusation, echoing the warnings in our note on the object of the charge as notice to the accused. A charge free of all five defects, with every Bhaskaran limb dated and the debt pleaded, will survive scrutiny.
Curability — When a Defective 138 Charge Is Not Fatal
Not every imperfection sinks a conviction. Sections 504–505 of the BNSS (the successors to Sections 464–465 CrPC) provide that an error, omission or irregularity in the charge does not vitiate the trial unless it has occasioned a failure of justice, judged by whether the accused was in fact misled and thereby prejudiced. The Supreme Court applied this prejudice test to charge defects generally in Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, holding that the object of a charge is to give the accused notice, and a defect that causes no prejudice is curable.
In the Section 138 setting this means a misdescription — say, a wrong cheque number corrected by evidence the accused fully met — may be saved if the accused understood the accusation and led his defence accordingly. But the curative provisions cannot resuscitate the absence of an ingredient: a "charge" that never alleged the demand notice or the fifteen-day default is not a defective charge but a charge for a non-offence, and no amount of prejudice-analysis rescues it. The line, as always, is between an imperfectly pleaded offence and an unpleaded one.
A Note on Section 143A and the Plea Stage
The 2018 Amendment inserted Section 143A, empowering the trial court to direct the drawer to pay interim compensation not exceeding twenty per cent of the cheque amount. Critically for the draftsman, the statute ties this power to the plea: in a summary or summons-case trial it arises where the drawer pleads not guilty to the accusation, and in any other case upon framing of charge. The substance-of-accusation stage under Section 274 BNSS is thus not a formality — it is the procedural hinge on which interim compensation turns.
This reinforces the chapter's central discipline. Even though Section 138 trials usually dispense with a formal charge, the moment the accused is asked to plead to a properly stated accusation is a substantive event with monetary consequences. A magistrate who states a complete, ingredient-by-ingredient accusation under Section 274 not only protects the conviction on appeal but also lays the foundation for the Section 143A direction. For the broader theory of why precise accusation matters, return to our introduction to framing of charges and its statutory basis.
Frequently asked questions
What are the essential ingredients I must plead in a Section 138 charge?
The five concatenated acts identified in K. Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510: drawing of the cheque on the drawer's own account, presentation to the bank within validity, dishonour for insufficient funds or exceeding arrangement, written demand notice within thirty days of intimation, and the drawer's failure to pay within fifteen days of receiving that notice. Kusum Ingots & Alloys v. Pennar Peterson Securities, (2000) 2 SCC 745 adds that the cheque must be for a legally enforceable debt the drawer was liable to pay at presentation.
Is a formal charge even framed in a cheque-bounce case?
Usually not. Section 143 of the NI Act directs summary trial following the summons-case procedure, and under Section 274 of the BNSS, 2023 (formerly Section 251 CrPC) the magistrate states the particulars of the offence to the accused without framing a formal charge. A "sample charge" is in practice a sample substance of accusation — but it must still carry every Bhaskaran ingredient and every date, because no later charge can cure an omission.
Can I prosecute on a second presentation of the same cheque?
Yes. In MSR Leathers v. S. Palaniappan, (2013) 1 SCC 177, a three-Judge Bench held that successive presentation within validity is permissible and a prosecution on the second or later dishonour is maintainable if the proviso requirements are freshly met, overruling Sadanandan Bhadran v. Madhavan Sunil Kumar, (1998) 6 SCC 514. The charge must, however, plead one coherent presentation-notice-default chain — not a mix of dates from different cycles.
Must the company be named when I charge a director or signatory?
Yes, mandatorily. Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661 holds that the company is the principal offender and vicarious liability under Section 141 cannot attach to an officer unless the company itself is arraigned as an accused. The charge must also aver that the officer was in charge of and responsible to the company for the conduct of its business.
Does the charge have to plead the debt, given the Section 139 presumption?
Yes. Rangappa v. Sri Mohan, (2010) 11 SCC 441 holds that the Section 139 presumption includes the existence of a legally enforceable debt, but the presumption is an evidentiary device, not a pleading shortcut. The charge still alleges the legally enforceable debt as an ingredient; what the presumption does is shift to the accused the burden of rebutting it on a preponderance of probabilities.
Will a wrong cheque number or date in the charge cause acquittal?
Not automatically. Under Sections 504–505 BNSS (formerly Sections 464–465 CrPC), and per Willie (William) Slaney v. State of M.P., AIR 1956 SC 116, a charge error vitiates the trial only if it caused a failure of justice by actually misleading the accused. But the curative provisions cannot save the total absence of an ingredient — a charge that never alleged the notice or the fifteen-day default is a charge for a non-offence, not a defective charge.