All NotesCivil LawNegotiable Instruments Act, 1881

Negotiable Instruments Act, 1881

Cognizance, Complaint and Limitation (Section 142(1))

Section 138 offences are prosecuted in a special way. They cannot be investigated on a police report in the ordinary course; they begin only on a written complaint by the payee or holder in due course, filed within a short limitation period, before a Judicial Magistrate of the First Class or Metropolitan Magistrate. Section 142(1) lays down these rules, overriding the general criminal procedure code. This note explains them, together with the steps the Magistrate takes before issuing process.

1. The Provision

Section 142(1), Negotiable Instruments Act, 1881

Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (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.

2. Who May Complain

  • Payee or holder in due course only: no one else, not even the police or a stranger, can set the law in motion.
  • Companies and firms: a company complains through an authorised officer or representative; the company remains the complainant.
  • Power of attorney holders: a power of attorney holder may file the complaint and depose, but only on matters within his personal knowledge; the complaint should state that he has knowledge of the transaction (A.C. Narayanan v. State of Maharashtra, 2014).

3. Limitation

  • One month: the complaint must be filed within one month of the date the cause of action arises, that is, the day after the 15-day payment period expires (Topic 44).
  • Computation: the day on which the cause of action arises is excluded in computing the month (Saketh India v. India Securities, 1999).
  • Premature complaints: a complaint filed before the cause of action arises is not maintainable (Yogendra Pratap Singh v. Savitri Pandey, 2014).
  • Condonation (proviso, added in 2002): the court may take cognizance of a delayed complaint if the complainant shows sufficient cause.
  • Condonation first: the court must decide the application for condonation before taking cognizance; taking cognizance first and condoning later is unsustainable (S. Nagesh v. Shobha S. Aradhya, Supreme Court, 2026).

4. The Court

Only a Metropolitan Magistrate or Judicial Magistrate of the First Class can try the offence (Section 142(1)(c)). The complaint must be filed in a court having territorial jurisdiction under Section 142(2) (Topic 48).

5. Steps Before Issuing Process

  • Scrutiny and verification: the Magistrate examines the complaint and the complainant's sworn statement, which may be on affidavit (Section 145; Topic 49). Suppression of material facts may justify quashing (Rekha Sharad Ushir v. Saptashrungi Mahila Nagari Sahakari Patsanstha, Supreme Court, 2025).
  • No pre-cognizance hearing: the requirement under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to hear the accused before taking cognizance of a complaint does not apply to Section 138 complaints (Sanjabij Tari v. Kishore S. Borcar, 2025).
  • Inquiry where the accused lives outside the jurisdiction: the Magistrate must hold an inquiry before issuing process, but may take the complainant's witnesses' evidence on affidavit and may confine it to documents (In re Expeditious Trial of Cases under Section 138, Constitution Bench, 2021).
  • No review of summons: having issued process, the Magistrate has no inherent power to review or recall it, though he may revisit a question of jurisdiction (In re Expeditious Trial, 2021).

⚠ Key point

A court may take cognizance of a Section 138 offence only on a written complaint by the payee or holder in due course (Section 142(1)(a)), filed within one month of the cause of action, excluding the first day (Saketh India), with delay condonable for sufficient cause, but the condonation must come before cognizance (S. Nagesh, 2026). Only a Metropolitan Magistrate or JMFC may try the offence (Section 142(1)(c)). A power of attorney holder may complain on personal knowledge (A.C. Narayanan). No pre-cognizance hearing under Section 223 BNSS is needed (Sanjabij Tari, 2025); an inquiry, which may be on affidavits, is required where the accused lives outside the court's jurisdiction (In re Expeditious Trial, 2021).

6. Related Topics and Provisions

  • Notice and deemed service (Topic 44)
  • Territorial jurisdiction (Topic 48)
  • Summary trial and evidence (Topic 49)