Procedure in a Section 138 Case in Kolkata
Cheque bounce cases in Kolkata are filed before the Metropolitan Magistrate (at Bankshall Court, Bidhannagar Court, etc.) or the Chief Judicial Magistrate (in suburban courts like Barasat and Barrackpore). The procedure involves several stages:
Filing of Complaint: The payee files a complaint along with the original dishonoured cheque, bank memo, copy of the legal notice, postal receipts, and an affidavit.
Examination of Complainant: The magistrate examines the complainant on oath and, if satisfied, issues summons to the accused.
Appearance and Bail: The accused appears in response to the summons and is granted bail (the offence is bailable).
Pleading and Evidence: The accused pleads guilty or not guilty. If not guilty, the complainant leads evidence, followed by the accused's defence.
Judgment: The court delivers its judgment. If convicted, the accused may be sentenced to imprisonment of up to two years, a fine up to twice the cheque amount, or both.
Under the BNSS, 2023, certain procedural changes have been introduced, including the possibility of summary trials for cheque bounce cases to expedite disposal.
Defending a Cheque Bounce Case
Not every dishonoured cheque results in a conviction. Advocate Gajanan Shaw has successfully defended numerous Section 138 cases by raising the following defences:
No Legally Enforceable Debt: If the cheque was issued as a gift, for an illegal purpose, or without any underlying liability, the complaint is not maintainable.
Cheque Given as Security: If the cheque was given as security and not for discharge of a debt, this can be a valid defence.
No Valid Notice: If the statutory notice was not sent within 30 days, was sent to the wrong address, or did not contain the correct details, the complaint may be dismissed.
Complaint Beyond Limitation: If the complaint was filed after the statutory 30-day period, it is liable to be dismissed.
Blank Cheque Misused: If a blank signed cheque was misused by filling in an amount never agreed upon, this is a strong defence.
Payment Already Made: If the debt was already paid before the cheque was presented, the complaint is not maintainable.
Settlement: Section 138 cases are compoundable, meaning parties can settle the matter at any stage. Advocate Shaw actively facilitates settlements where both parties are willing.
Recovery Strategies for Payees
For payees who have been defrauded by a dishonoured cheque, Advocate Shaw pursues a multi-pronged recovery strategy:
Criminal Complaint under Section 138 NI Act: The primary remedy, carrying the threat of imprisonment, which often compels the drawer to pay.
Summary Suit under Order XXXVII CPC: A civil suit for recovery based on the cheque as a negotiable instrument. Summary suits are faster than regular civil suits.
Interim Attachment: In appropriate cases, an application can be made for attachment of the drawer's assets before judgment to prevent them from dissipating their property.
Insolvency Proceedings: If the drawer is a business entity, insolvency proceedings under the Insolvency and Bankruptcy Code, 2016, may be initiated.
Cheque Bounce Jurisdiction in Kolkata
The jurisdiction for filing a Section 138 complaint has been clarified by the Supreme Court in Dashrath Rupsingh Rathod v. State of Maharashtra (2014) and the subsequent amendment to the NI Act. The complaint must be filed where the bank on which the cheque is drawn is located.
For Kolkata residents, this typically means:
Bankshall Court: For cheques drawn on banks located in central Kolkata.
Bidhannagar Court: For cheques drawn on banks in Salt Lake, New Town, and Rajarhat areas.
Alipore Court: For cheques drawn on banks in South Kolkata.
Barasat and Barrackpore Courts: For cheques drawn on banks in the northern suburbs.
Advocate Shaw advises clients on the correct jurisdictional court to avoid dismissal on technical grounds.
Timeline and Practical Considerations
Despite legislative intent, Section 138 cases in Kolkata often take 1-3 years to conclude. However, several factors can expedite the process:
Summary Trial Procedure: Courts are increasingly adopting summary trial procedures for cheque bounce cases.
Mediation and Settlement: Many courts now refer Section 138 cases to mediation, where settlements can be reached quickly.
Digital Evidence: The use of digital records and bank statements has reduced the need for lengthy oral evidence.
Advocate Shaw works proactively to minimize delays, whether by pushing for early hearing dates, facilitating settlement negotiations, or filing applications for expedited disposal.