BACK TO NI Act 1881
NI Act 1881
Section 142
Cognizance of Offences
THE STATUTE
Original Text
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.
Legal Commentary
Section 142 is the procedural gateway to Section 138 prosecutions. Three mandatory conditions must be satisfied before a court can even take cognizance (formally acknowledge and begin proceedings on) a cheque bounce complaint:
**Condition 1 — Written complaint only:** No court can take cognizance of Section 138 based on police reports or suo motu action. Only a written complaint by the payee (original recipient of the cheque) or a holder in due course (someone to whom the cheque was legitimately transferred) can trigger proceedings. This is a non-cognizable offence — police play no role. The complainant must personally approach the Magistrate.
**Condition 2 — 30-day limitation:** The complaint must be filed within one month (30 days) of the cause of action arising. The cause of action arises on the day *after* the 15-day payment window (post-notice) expires. Example: notice received on Day 1 → 15-day window closes Day 16 → cause of action on Day 17 → complaint must be filed by Day 47 (Day 17 + 30 days). Missing this window without explanation is fatal.
**Condonation proviso:** The court has discretion to take cognizance beyond the 30-day period if the complainant shows 'sufficient cause.' Courts have condoned delay for reasons including: medical incapacity, postal delay in notice delivery, good-faith negotiations with the drawer, and administrative errors. Courts do not condone inexplicable or negligent delays.
**Condition 3 — Court level:** Only a Judicial Magistrate First Class (JMFC) or Metropolitan Magistrate can try Section 138 offences. Executive Magistrates and lower courts have no jurisdiction.
**'Notwithstanding CrPC':** The opening phrase overrides the normal CrPC cognizance provisions — courts cannot take cognizance under their general CrPC powers; they must follow the Section 142 route specifically.
**Who is a 'holder in due course':** Under Section 9 NI Act, a holder in due course is someone who obtained the cheque for value, in good faith, before it became overdue, and without notice of any defect. Such a person can file a Section 138 complaint even if they are not the original payee.
Questions & Answers
Only the payee (the person to whom the cheque was originally issued) or a holder in due course (a person who received the cheque by legitimate transfer, for value, in good faith) can file a written complaint. Neither the police nor the court can initiate Section 138 proceedings suo motu.
The complaint must be filed within 30 days of the cause of action arising. The cause of action arises on the day after the 15-day payment window (after notice) expires. Courts can condone delay beyond 30 days if the complainant shows sufficient cause — but delay must be specifically explained.
Yes, but only if the court is satisfied that there was 'sufficient cause' for the delay. Courts have condoned delays for medical reasons, genuine negotiations, postal delays, and administrative errors. Inexplicable or negligent delays are not condoned. The application for condonation must accompany the complaint.
Only a Judicial Magistrate of the First Class (JMFC) or a Metropolitan Magistrate. Lower courts — including Executive Magistrates — have no jurisdiction. Section 142(c) makes this explicit.
Each fresh dishonour creates a fresh cause of action under Section 138, per Sadanandan Bhadran (1998). The payee can file a complaint after any one of the dishonours, provided notice is sent within 30 days of that particular dishonour memo and the complaint is filed within 30 days of the resulting cause of action.