An appeal against conviction under Section 138 of the Negotiable Instruments Act lies to the Court of Session under Section 415(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (the old Section 374(3) CrPC), and it must be filed within thirty days of the sentence under Article 115 of the Limitation Act, 1963. The Sessions Court will ordinarily suspend the sentence and release you on bail under Section 430 BNSS (the old Section 389), on conditions. Section 148 of the NI Act then lets it order a deposit of at least twenty per cent of the fine or compensation within sixty days, extendable by thirty. Since Surinder Singh Deswal v Virender Gandhi (Supreme Court, 2019) that deposit is the rule, and the one exception, recognised in Jamboo Bhandari v M.P. State Industrial Development Corporation (Supreme Court, 2023), is the case where it would be unjust or would take away the right of appeal.
Part of the cheque bounce practice at S Jain & Attorneys, Bangalore.
This page is for the proprietor or director who left a Magistrate's court in Bengaluru yesterday with a conviction, a fine or compensation order carrying a default term, and a month to pay. It covers the appeal only. The trial is in the Section 138 procedure guide.
Four filings belong on day one.
| Filing | Provision | Deadline | What the court weighs |
|---|---|---|---|
| Memorandum of appeal, with a copy of the judgment | Sections 415(3) and 423 BNSS | Thirty days from the sentence (Article 115), copy time excluded (Section 12(2)) | Only that it is in time and complete |
| Suspension of sentence and bail | Section 430(1) BNSS, or 430(3) before the Magistrate on the day of judgment | With the appeal | Reasons recorded, sentence length, whether you were on bail through the trial |
| Suspension of the payment direction and the default term | Section 430(1) BNSS, Section 395(2) | With the appeal | Recovery ordinarily waits for the appeal, except the Section 148 deposit |
| The Section 148 deposit, or an application to be excused from it | Section 148(1) and (2) NI Act, Jamboo Bhandari | Sixty days from the order, up to thirty more for sufficient cause | Deposit is the rule, exemption needs recorded reasons |
Where do I file the appeal against conviction under Section 138, and by when?
The appeal goes to the Court of Session, which in Bengaluru means the City Civil and Sessions Court, and it must reach that court within thirty days of the date of the sentence. Section 415(3) BNSS gives any person "convicted on a trial held by Magistrate of the first class, or of the second class" an appeal to the Court of Session, and Section 143 of the NI Act sends every cheque case to a Judicial Magistrate of the first class or a Metropolitan Magistrate. The petition must be in writing with a copy of the judgment attached (Section 423).
Article 115 of the Schedule to the Limitation Act, 1963 fixes thirty days for an appeal from a sentence to any court other than the High Court, counted from the date of the sentence. Section 12(2) excludes the day of pronouncement and "the time requisite for obtaining a copy" of the order appealed from, so apply for the certified copy on the day of judgment and keep the receipt. Section 5 allows a late appeal on sufficient cause, but the affidavit has to explain every day.
Three numbers run the first month.
Thirty days to appeal
Article 115 of the Limitation Act counts thirty days from the date of the sentence. The pronouncement day and the certified-copy wait are excluded, nothing else is.
Three years for trial-court bail
Section 430(3) BNSS obliges the convicting Magistrate to release an accused who was on bail and is sentenced to three years or less, for long enough to file the appeal.
Sixty days, thirty more
Section 148(2) gives sixty days from the appellate order to deposit, and up to thirty more on sufficient cause shown, and no longer.
Will I go to jail while the appeal is pending?
Usually not, if you ask on the day of the judgment and then file within the thirty days, because the Sanhita gives a convicted person two routes to bail. Section 430(3) BNSS binds the Magistrate who convicted you: where the convicted person says he intends to appeal, it "shall" release him on bail if he was on bail during the trial and the sentence is three years or less, unless there are special reasons for refusing, for long enough to file the appeal. A Section 138 sentence cannot exceed two years, so an accused who attended the trial on bail qualifies.
The second route is Section 430(1), the old Section 389 CrPC. Pending the appeal the Sessions Court may, for reasons recorded in writing, suspend the execution of "the sentence or order appealed against" and release the appellant on bail or on his own bond. Ask for three things separately: suspension of the substantive sentence, suspension of the direction to pay and the default term attached to it, and release on a bond. Deswal held that the Section 148 order can be made on the accused's own suspension application, so the order usually reads: sentence suspended, appellant on bail, subject to deposit of twenty per cent within sixty days.
Do I have to deposit twenty per cent of the fine before my appeal is heard?
Yes in most cases, though the deposit is a condition of the suspension of sentence, not a fee for filing, and it comes due within sixty days of the order suspending your sentence. Section 148, inserted by the Negotiable Instruments (Amendment) Act, 2018 and in force since 1 September 2018, says the appellate court "may order the appellant to deposit such sum which shall be a minimum of twenty per cent" of the fine or compensation awarded by the trial court, in addition to any interim compensation paid under Section 143A, which the interim compensation guide covers. Twenty per cent is a floor: in Deswal the appellate court had fixed twenty-five per cent and the Supreme Court left it there.
Deswal settled the word "may". Reading the amendment with its Statement of Objects, which complained of drawers delaying payment "due to easy filing of appeals and obtaining stay", the Court held that the word "is generally to be construed as a 'rule' or 'shall' and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned".
Jamboo Bhandari is the exception, and it is narrower than it is sometimes described. The courts below had treated the deposit as compulsory, an "erroneous premise that deposit of minimum 20% amount is an absolute rule which does not accommodate any exception". The test: "normally, Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded." The court must consider the exception whenever an unconditional suspension is sought, but a bare plea of hardship gets the ordinary order. The plea needs material: the fine against the appellant's disclosed means, and why the appeal would be defeated without relief.
For a director or signatory the position is unsettled. Bharat Mittal v State of Rajasthan (Supreme Court, 18 December 2025) refused a blanket exemption for a director convicted where the company could not be prosecuted, disagreed with two 2024 decisions holding that an authorised signatory is not the "drawer" for Section 148, and referred the question to a larger Bench. Argue the point, and be ready to deposit. The directors guide covers the Section 141 side.
Key takeaway. File the appeal and the suspension application without waiting for the deposit money. The deposit follows the appellate court's order by sixty days, and the Jamboo Bhandari exception has to be argued in that application with documents, because the court records reasons either way.
What can the appeal actually achieve?
Under Section 427 BNSS the Sessions Court can reverse the finding and acquit you, order a retrial, keep the conviction but alter "the nature or the extent" of the sentence, and in your own appeal it cannot enhance the sentence. Two years' imprisonment can become a fine, a fine of twice the cheque amount can be reduced, and Section 395(4) lets the appellate court substitute a compensation order.
The appeal is decided on the trial record, and additional evidence comes in only where the appellate court records reasons under Section 432 BNSS. The centre of that record is the Section 139 presumption that the cheque was received "for the discharge, in whole or in part, of any debt or other liability", which stands "unless the contrary is proved". The defences guide shows which rebuttals have worked.
Ignored part-payments have Supreme Court backing, with conditions. In Dashrathbhai Trikambhai Patel v Hitesh Mahendrabhai Patel (11 October 2022) the drawer had given a cheque as security and then paid part of the loan before the cheque was presented. The Court held that the dishonoured cheque "must represent a legally enforceable debt on the date of maturity or presentation" and that a part-payment made after the cheque was drawn "must be endorsed on the cheque under Section 56 of the Act". An unendorsed cheque for the full sum, dishonoured, does not attract Section 138. The ground turns on dates and proof: when the cheque was drawn and when each payment went out. Payments made before the cheque was drawn are a different argument, on the presumption rather than on Section 56.
What I tell people at the first meeting is that a Sessions appeal is won or lost on the deposition sheets, not on the grounds of appeal. The first job is to read the complainant's evidence and your own cross-examination and to match every payment you say was ignored to a bank entry with a date. Where these appeals actually turn is on whether the payment and its date were put to the complainant at trial.
Common mistake. Paying the complainant directly after the conviction without a receipt naming the case number and without telling the appellate court. The payment does not reduce the fine on its own, it is not the Section 148 deposit, and it can be denied later.
Can I still settle after the conviction?
Yes. Section 147 of the NI Act makes every offence under the Act compoundable, and Section 359(5) BNSS says that once the accused is convicted and an appeal is pending, no composition is allowed "without the leave of the Court ... before which the appeal is to be heard". Let the thirty days lapse and there is no court whose leave can be sought.
How a conviction is set aside once the money is paid is in the guide to quashing a cheque bounce conviction after settlement. A Section 148 deposit already in court should be accounted for in the settlement and released or refunded under the same order, not paid twice.
The cost of settling late is graded. The Damodar Prabhu guidelines set a scale of costs, payable to the Legal Services Authority, that rises with the stage at which the offence is compounded. The settlement and Lok Adalat guide sets out the scale.
What if I cannot pay the fine or the deposit?
Separate the three sums, because each has its own rule: the fine or compensation the Magistrate ordered, the default term attached to it, and the twenty per cent deposit in the appeal. Section 395(1)(b) BNSS (the old Section 357) lets the court direct that the whole or part of a fine be paid to the complainant as compensation, and Section 395(3) allows a compensation order where no fine is imposed. Under Section 395(2) no such payment is made "before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal". The Section 148 deposit is the exception by design: Deswal held that its non obstante clause overrides that rule.
The default term operates only if the money is not paid, and Section 24 BNSS caps it: where imprisonment is also part of the substantive sentence, the default term cannot exceed one-fourth of the maximum the Magistrate could have imposed. Compensation is recoverable as if it were a fine under Section 471. All of it can be suspended pending the appeal under Section 430(1).
| Sum | Who receives it, and when | If it is not paid | In the appeal |
|---|---|---|---|
| Fine under Section 138 | The State, the complainant out of it under Section 395(1)(b) after the appeal | Default term within the Section 24 limits, attachment or Collector's recovery (Section 461) | Suspension under Section 430(1), reduction under Section 427 |
| Compensation under Section 395(3) | The complainant, subject to the same wait | Recoverable as a fine (Section 471) by the same Section 461 warrants | The appellate court can make, vary or set aside the order (Section 395(4)) |
| Deposit under Section 148 | Into court within sixty days plus thirty, releasable to the complainant meanwhile (Section 148(3)) | The suspension was granted subject to it, so bail itself is at risk | Repaid with interest at the RBI bank rate on acquittal |
Instalments are the wrong ask: Section 148(2) allows sixty days and one extension of up to thirty. The tools that exist are the Jamboo Bhandari exception pleaded with bank statements and tax returns, and a settlement inside the appeal.
Step by step: the first thirty days after a Section 138 conviction
- At the moment of judgment, tell the Magistrate you intend to appeal and ask for bail under Section 430(3) BNSS. Furnish the bond the same day.
- Apply for the certified copy the same day and keep the receipt, because the copy-waiting time is excluded under Section 12(2) only if you can prove the dates.
- Diary the deadline as thirty days from the date of the sentence and treat the exclusions as a cushion, not an extension.
- Collect the record: the complaint, the notice, the cheque and return memo, the depositions, every exhibit, and bank statements showing each payment with its date.
- File the memorandum with the copy of the judgment, the suspension and bail application, the application on the payment direction and default term, and the Section 148 application.
- On the day the suspension order is passed, compute the sixty days. If more time will be needed, apply inside them for the further thirty.
- Decide the settlement question in parallel. Compounding now needs the leave of the appellate court under Section 359(5) BNSS.
Deadline warning. The thirty days run from the date of the sentence, not from the day you collect the certified copy, and only the copy-waiting time is excluded. Negotiations do not stop the clock. File first, settle inside the appeal.
Three things the appellate court will not do, whatever the memorandum asks.
No enhancement in your appeal
Section 427 BNSS allows the Sessions Court to alter the sentence but not to enhance it in the convicted person's own appeal. Enhancement needs a separate State appeal.
No new evidence by right
Additional evidence comes in only where the appellate court records reasons under Section 432 BNSS. The appeal is argued on the depositions the Magistrate recorded.
No compounding without leave
Section 359(5) BNSS bars composition after conviction while an appeal is pending unless the appellate court grants leave, so the settlement is filed inside the appeal.
Frequently Asked Questions
Can I file the appeal in the High Court instead of the Sessions Court?
No. Section 415(3) BNSS sends an appeal from a conviction by a Magistrate to the Court of Session, and cheque cases are tried by Magistrates under Section 143 of the NI Act. The High Court comes in afterwards, in revision under Section 442 BNSS against the Sessions Court's orders.
Do I have to deposit twenty per cent before the appeal is admitted?
No. The deposit is ordered when the appellate court suspends the sentence, and Section 148(2) gives sixty days from that order, extendable by up to thirty on sufficient cause. Filing and admission of the appeal do not depend on it.
What happens if I miss the thirty days?
The appeal can still be admitted under Section 5 of the Limitation Act if you satisfy the Sessions Court that there was sufficient cause for the delay, with an affidavit explaining it. Section 12(2) excludes the pronouncement day and the time taken to obtain the certified copy before any delay is counted, so check the arithmetic before assuming the appeal is late.
Will the deposit be paid to the complainant?
It can be. Section 148(3) lets the appellate court release the deposit to the complainant at any time during the appeal, and if you are acquitted the complainant must repay it with interest at the RBI bank rate within sixty days, extendable by thirty.
Can the Sessions Court increase my sentence?
Not in your own appeal. Section 427 BNSS lets the appellate court alter the sentence but not enhance it. Enhancement needs an appeal by the State under Section 418 BNSS, and even then you must be given an opportunity to show cause against it first.
I was convicted as a director. Does the twenty per cent apply to me?
The question is before a larger Bench of the Supreme Court. Bharat Mittal v State of Rajasthan (18 December 2025) refused a blanket exemption for directors and referred the point whether the deposit can be directed against a director or signatory who is not the drawer. Argue it, and be prepared to deposit.
Can I settle while the appeal is pending?
Yes. Every offence under the NI Act is compoundable under Section 147, but after conviction Section 359(5) BNSS requires the leave of the court hearing the appeal, so the settlement is placed before the Sessions Court in the appeal itself.
Does the interim compensation I already paid under Section 143A count?
Partly. Section 143A(6) reduces the fine or compensation by the interim compensation already paid, but Section 148 says the appellate deposit is in addition to any interim compensation paid, so the twenty per cent is paid on top of what went out during the trial.
What if the cheque was for more than I owed?
If part of the debt was paid after the cheque was drawn and before it was presented, Dashrathbhai Patel (Supreme Court, 2022) holds that the cheque must represent the legally enforceable debt on the date of presentation and that such payments must be endorsed on the cheque under Section 56. Proof of each payment and its date, and whether it was put to the complainant at trial, decides how far the ground goes.
This article is for general informational purposes only and does not constitute legal advice. Consult a qualified advocate for advice on your specific situation.
