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How to file a complaint under the NI Act

Shivendra Pratap Singh

Advocate

15/01/2017

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Sir, how to file a complaint under the Negotiable Instrument Act? I am a software engineer and working in Infosys. One of my colleagues met financial hardship so he requested me to give five lakh rupees. Therefore, I remitted three lakh rupees in his bank account. At the same time, I took a print out of that transaction record and sent it on his WhatsApp number.

After seven months he issued a cheque valued rupees three lakh. That cheque was dishonoured due to insufficient fund. I think he is not willing to pay that amount so I want to take legal action against him under the NI Act. Please guide.

Question from: Karnataka

Section 142 Cognizance of offences: Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

Ingredients:

  • The only complaint can be filed by the payee of the cheque. The criminal proceeding will be initiated by the filing of the complaint.
  • Such complaint shall be filed before the court of the Metropolitan Magistrate or a Judicial Magistrate of the first class. No other court has jurisdiction in respect of cheque bounce.
  • The complaint shall be filed within one month of the date on which the cause of action arises.
  • Cause of action arises when the drawer of the cheque is failed to pay an amount of money to the payee within 15 days of the date of receiving of demand notice.
  • Rakesh Nemkumar Porwal vs Narayan Dhondu Joglekar 1993Cri L J 680 (Bom) under clause (c) of the section 138 NI Act, 15 days’ time is granted to the drawer of the cheque to make payment and unless this period elapsed and no payment was made, the drawer was not liable for any offence under section 138 of the NI Act.
  • N. Venkata Sivaram Prasad vs Rajeshwary Construction 1996 Cri. L. J. 3409 (AP) complaint cannot be filed unless the drawer of the cheque fails to make the payment to the payee within 15 days of the receipt of the demand notice.
shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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