Introduction
In a recent judgment delivered on 29 July 2025, the Bombay High Court once again emphasized the mandatory nature of the procedural requirements under Section 138 of the Negotiable Instruments Act, 1881. The Court examined whether the complainant had duly complied with the statutory pre-conditions, especially those relating to service of demand notice and cause of action, before initiating prosecution for cheque dishonour.
The case titled Sou. Usha Rashmi Ramesh Bhadre v. Raviraj Yuvraj Chavan & State of Maharashtra involved a challenge filed by the complainant under Article 226 of the Constitution, questioning the Magistrate’s decision on the issue of compliance under Section 138. This judgment is another reminder that technical lapses in the Section 138 process can render the entire prosecution unsustainable, even if the cheque amount is undisputed.
Case Summary
Court: High Court of Judicature at Bombay
Coram: Justice S.M. Modak
Date: 29 July 2025
Case: Criminal Writ Petition No. 2979/2023
Petitioner: Sou. Usha @ Rashmi Ramesh Bhadre, 63 years
Respondent No.1: Raviraj Yuvraj Chavan, 40 years
Respondent No.2: State of Maharashtra
The petitioner, a senior citizen and complainant in a cheque bounce matter, approached the High Court after the Magistrate took a view against her regarding the statutory compliance under Section 138 of the NI Act.
The High Court heard:
Mr. Anand Patil for the Petitioner
Mr. Zishan Quazi for Respondent/Accused
Mr. H.J. Dedhia, APP for the State
The core issue before the Court was sharply defined:
“Whether the complainant had complied with the mandatory provisions of Section 138 of the NI Act before instituting criminal proceedings?”
The Court confined itself to this singular point, hearing both sides briefly and reserving the rest of the merits for trial.
Legal Analysis
1. Mandatory Compliance Under Section 138
Section 138 requires the following steps:
1. Dishonour of Cheque
2. Statutory Notice within 30 Days
3. 15 Days’ Time to Pay
4. Complaint Within 30 Days of Cause of Action
The Supreme Court has repeatedly held (e.g., CC Alavi Haji v. Palapetty Muhammed and Dashrath Rupsingh Rathod v. State of Maharashtra) that each step must be strictly complied with. Failure of even one condition deprives the Magistrate of the jurisdiction to take cognizance.
2. High Court’s Approach
Justice S.M. Modak restricted the scrutiny to procedural compliance, which is the foundation of every 138 proceeding. The Court stressed that the complainant carries the burden of proving:
Proper issuance of notice,
Proof of dispatch,
Proof of service or deemed service,
Timely filing of the complaint.
Since this aspect was contested by the accused, the Court examined the documents, submissions, and the Magistrate’s view.
3. Ongoing Trend in 138 Jurisprudence
High Courts across India have observed a pattern:
Many complaints get dismissed not on merits but on procedural lapses, especially notice-related issues. Courts have been insisting on traceable evidence such as postal acknowledgment, tracking reports, and proper addressing. Non-compliance results in quashing or dismissal even if liability is crystal clear. This case aligns with the same consistent judicial approach prioritizing procedural correctness.
Why This Judgment Matters:- It serves as a caution to complainants and lawyers filing 138 complaints. Ensures meticulous preparation of the notice stage, often ignored in routine practice. Reinforces that Section 138 is a special penal provision with strict statutory timelines. Provides clarity on how High Courts examine procedural defects when challenged under writ jurisdiction.
Full Case Description (Without Headings)
The matter titled Sou. Usha @ Rashmi Ramesh Bhadre v. Raviraj Yuvraj Chavan & State of Maharashtra came before the Bombay High Court in Criminal Writ Petition No. 2979 of 2023. The petitioner, a 63 year old housewife from Kolhapur, had initiated criminal proceedings under Section 138 of the NI Act alleging cheque dishonour by the respondent, a businessman from Kolhapur. The core question before the Court was whether the complainant had duly complied with the statutory pre-conditions of Section 138 before filing the complaint. The Court heard advocates for both parties and confined its consideration solely to this issue. Justice S. M. Modak emphasized that the validity of prosecution under Section 138 entirely depends on strict adherence to the statutory requirements of notice, service, and cause of action. The judgment proceeded to evaluate compliance without entering into the merits of the underlying transaction. The decision clarifies that non-compliance at the notice stage can vitiate the entire complaint irrespective of the nature of liability or the conduct of the accused.
