Services for the Complainant (The Payee)

The objective of the law firm for the payee is to ensure the swift and full recovery of the money owed.

1. Pre-Complaint Statutory Compliance

Adhering to strict legal timelines is essential, as any delay could jeopardize the case.

Drafting and Issuing the Legal Demand Notice: This is the initial required step. The firm prepares a legally valid notice requesting payment for the bounced cheque amount.

Ensuring Timely Service: The notice must be dispatched to the drawer within 30 days of receiving the bank’s “cheque return memo.”

Documentation: Obtaining and maintaining evidence of dispatch (postal receipt, acknowledgment due) for court purposes.

2. Filing the Criminal Complaint

Should the drawer neglect to pay the cheque amount within 15 days of receiving the notice, the firm will move forward with filing a formal complaint.

Drafting and Filing: Composing the criminal complaint under Section 138 of the NI Act, along with an affidavit, to be submitted to the appropriate Magistrate court.

Jurisdiction Compliance: Confirming that the complaint is filed in the correct court in accordance with recent Supreme Court decisions (where the payee’s bank account is situated).

3. Court Representation and Recovery

Conducting Trial: Presenting evidence, performing the examination-in-chief, and cross-examining the accused and their witnesses to counter the legal presumption of innocence.

Interim Compensation: Advocating for interim compensation (up to 20% of the cheque amount) under Section 143A of the NI Act to offer the client immediate relief during the lengthy trial.

Enforcement of Judgment: Taking necessary actions, including the recovery of the fine/compensation awarded by the court, which often results in the attachment and sale of the accused’s property.

Services for the Accused (The Drawer)

The objective of the firm regarding the drawer is to provide a defense against criminal allegations, lessen penalties, or achieve an acquittal by contesting the legal assumptions.

1. Responding to the Legal Notice

Strategic Reply: Crafting a strong response to the demand notice, articulating the main defense points (e.g., absence of a legally enforceable debt, improper use of the security cheque) to establish a record and potentially avert litigation.

Settlement Facilitation: Offering guidance on the possible benefits of making a payment at this initial stage to avert the initiation of a criminal case.

2. Defense Strategy & Litigation

Rebutting Presumptions: The firm aims to counter the legal presumption that the cheque was issued for a legally enforceable debt (Section 139 NI Act).

Common Defenses Raised:

The cheque was provided as security rather than for immediate debt settlement.

The debt is barred by time constraints under the Limitation Act.

Procedural errors by the complainant (e.g., flawed notice, delayed filing).

Cheque misuse (theft, significant alteration, etc.).

Bail and Appearance: Aiding the client in obtaining bail and ensuring prompt court appearances.

Cross-Examination: Challenging the complainant’s witnesses to reveal inconsistencies and undermine their claim of an enforceable debt.

Negotiation and Settlement (Both Parties)

Considering the primary goal of compensation, settlement is the most prevalent and recommended resolution.

Mediation: Advocating for clients in court-referred mediation or out-of-court discussions to reach a mutually acceptable payment arrangement.

Compounding the Offence: Submitting a request to the court to ‘compound’ the offence (resolve the issue) under Section 147 of the NI Act once the agreed payment is completed, leading to an acquittal and closure of the criminal case.

Drafting Settlement Deed: Formalizing the payment terms in a legally enforceable settlement deed, which can be upheld by the court in case of a breach of terms.