A Section 138 case is a criminal trial, but a light one, and knowing its shape removes most of the anxiety. The full Section 138 procedure is set out in our guide; this is what it feels like from the dock.
The sequence
- Summons. After the complaint is filed and the complainant's sworn statement recorded, the Magistrate takes cognizance and issues summons. Attend, or apply through your lawyer for exemption from personal appearance, which is routinely granted in these cases.
- Appearance and bail. You are usually released on furnishing a bond. The offence is bailable.
- Furnishing the complaint and recording your plea under Section 251 of the CrPC scheme, now the corresponding BNSS provision. If you plead not guilty, the trial proceeds.
- Complainant's evidence. Under Section 145 of the NI Act, the complainant's evidence may be given on affidavit, which is why these trials move faster than ordinary ones. You have the right to apply to cross-examine.
- Statement of the accused, where the incriminating circumstances are put to you.
- Defence evidence, then final arguments and judgment.
Two steps at the front of that sequence changed when the Bharatiya Nagarik Suraksha Sanhita replaced the Code, and they matter in Bengaluru because they add dates before summons is even issued. Under Section 223 BNSS, which carries forward the examination of the complainant on oath, there is now a proviso that no cognizance shall be taken by the Magistrate without giving the accused an opportunity of being heard. And under Section 227 BNSS, no summons or warrant is to be issued until a list of the prosecution witnesses has been filed. The practical effect is that a proposed accused may be heard before process issues at all, which is a real opportunity where the complaint is defective on its face, and a real source of delay where it is not.
The provision under which your plea is recorded is Section 274 BNSS, the successor to Section 251 of the Code. In a summons case the particulars of the offence are stated to you and you are asked whether you plead guilty or have a defence; no formal charge is framed. It carries a proviso worth knowing: if the Magistrate considers the accusation groundless, he must record reasons in writing and release you, and that release has the effect of a discharge.
Under Section 143A, the Magistrate may direct the accused to pay the complainant interim compensation of up to 20 percent of the cheque amount, and this can be ordered where the accused pleads not guilty. It is payable within 60 days, extendable by 30. Non-payment can be recovered as a fine. Many accused persons are taken by surprise by this, and it is often what drives a settlement.
It is not, however, automatic. In Rakesh Ranjan Shrivastava v. State of Jharkhand (2024) the Supreme Court held that Section 143A(1) is discretionary and not mandatory, that the word "may" cannot be read as "shall", and that the Magistrate must consider the merits and record reasons before making the order. An order passed mechanically, or one that fixes twenty per cent as though it were a tariff, is open to challenge. If you are the accused, oppose the application on the material: the strength of the defence disclosed in the reply to the notice, your means, and whether the cheque and the liability are genuinely in issue. If you are the complainant, ask for it, and ask for a figure you can justify. On acquittal, the amount is refundable with interest.
- The original cheque and return memo, for production and marking
- The notice, dispatch proof and acknowledgement
- Your affidavit of evidence in chief, already prepared
- The ledger, invoices or agreement showing the underlying debt
- Identity proof, and authorisation if you appear for a company
- A note of the dates, because the first question is almost always about limitation
What decides the case
Rarely the cheque itself, which is usually admitted. It is whether the accused can rebut the Section 139 presumption of a legally enforceable debt. That requires evidence, not merely a suggestion in cross-examination. Bank statements, accounts, and correspondence do the work.
Which is why the affidavit under Section 145 is not the end of the matter. Section 145(2) provides that the Court shall, on the application of the prosecution or the accused, summon and examine any person who has given evidence on affidavit as to the facts stated in it. So the right to cross-examine the complainant is not a concession; apply for it in writing and early. The defences that succeed, and the evidence each of them needs, are set out in our note on Section 138 defences.
Timelines
The statute contemplates disposal within six months. Reality is longer, commonly a couple of years, though summary procedure and affidavit evidence have improved it. Repeated non-appearance is the main cause of delay, and it results in warrants.
The six month figure comes from Section 143(3), which requires an endeavour to conclude the trial within six months of the filing of the complaint, and Section 143(2) which asks for day to day hearing so far as practicable. Section 143 also imports the summary trial procedure and caps the sentence in a summary trial at one year, with a fine that may exceed five thousand rupees. Where the Magistrate forms the view that a longer sentence may be needed, he must record an order to that effect, recall any witness already examined, and try the case as an ordinary summons case, which is a point to watch because it resets part of the trial.
On attendance, the provision to use is Section 355 BNSS: where the Judge or Magistrate is satisfied, for reasons recorded, that personal attendance is not necessary in the interests of justice, he may dispense with it provided the accused is represented by an advocate, and may direct personal attendance again at any later stage. So the application is made through counsel, on affidavit, at the first appearance, and it should offer to attend on any date the court directs.
Two practical points that shorten it. First, apply for exemption from personal appearance at the outset rather than attending every date and then defaulting on one; an exemption granted early is rarely disturbed. Second, if the matter is going to settle, settle it at the first or second hearing. That is the point at which compounding costs nothing, and every hearing after it makes the settlement more expensive. How that works, and why Lok Adalat is usually the cheapest route, is covered in our note on cheque bounce settlement and compounding.