One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

Rohan Mehta and his wife Sunita Mehta, residents of Gomti Nagar, Lucknow, had been fighting a cheque dishonour case for nearly a decade before the Judicial Magistrate finally delivered a verdict in early March 2025. The judgment was not in their favour. The court directed them to pay compensation of approximately Rs. 98 lakhs, with a default sentence of imprisonment if payment was not made within thirty days. The Mehtas were devastated. Their earlier advocate, a general civil practitioner with limited exposure to Negotiable Instruments Act matters, had assured them the arguments were solid. Yet the conviction came.

Their son, deeply alarmed, reached out through a referral and the matter landed at this office within days of the judgment. After reviewing the trial record, it became clear that certain procedural objections and evidentiary arguments had not been raised at the right stage, and the complaint had technical infirmities that were never properly contested. A criminal appeal was filed before the Sessions Court at Lucknow under Section 374 of the Bharatiya Nagarik Suraksha Sanhita, along with an application for suspension of sentence and stay of the fine under Section 430 BNSS. The Sessions Court granted a stay within two hearings, protecting the Mehtas from immediate imprisonment while the appeal proceeds. The matter is currently sub judice.

Cases like these aren’t rare. A conviction at the Magistrate level is not the end of the road. But acting swiftly and with the right procedural knowledge matters enormously at this stage.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

File the Appeal Without Delay: Under Section 374 BNSS, an appeal against a Magistrate’s conviction must be filed before the Sessions Court. The limitation period is thirty days from the date of judgment. Don’t wait to arrange funds or gather documents — file the appeal first, and simultaneously apply for suspension of sentence under Section 430 BNSS. Missing that thirty-day window can be fatal to your case.

Apply for Stay of Sentence Immediately: A stay or suspension of the sentence (including the fine and default imprisonment) can be obtained from the appellate court. This protects the convicted person from going to jail while the appeal is being heard. And here’s the thing — this step is urgent and should happen the same day as the appeal filing, or as close to it as possible. Don’t treat it as a follow-up task.

Domain Experience Matters Here: Cheque bounce matters under the Negotiable Instruments Act sit at the intersection of criminal procedure and commercial law. Procedural nuances around Section 138, Section 139, and Section 118 of the NI Act, combined with BNSS appellate provisions, are often unfamiliar territory for general practitioners. An advocate who regularly handles NI Act appellate work will identify arguable grounds faster and structure the stay application more effectively. Frankly, this is not the place for on-the-job learning by a generalist.

Applicable Sections of Law

This case is a mixed matter — criminal in procedure, but commercial and civil in its origins. The primary statute is the Negotiable Instruments Act, 1881, read with the Bharatiya Nagarik Suraksha Sanhita, 2023 for procedural aspects of the appeal.

Section 138, Negotiable Instruments Act, 1881: Defines the offence of cheque dishonour and prescribes punishment for the drawer.
Section 139, NI Act: Creates a rebuttable presumption that the cheque was issued for a legally enforceable debt — central to the accused’s defence.
Section 374, BNSS: Governs appeals against convictions passed by Magistrate Courts, filed before the Sessions Court.
Section 430, BNSS: Empowers the appellate court to suspend sentence and grant bail to the convicted person pending disposal of the appeal.

Punishment and Penalties

Section 138 of the Negotiable Instruments Act, 1881 prescribes the following:

Imprisonment: Up to two years, which may be simple or rigorous at the court’s discretion.
Fine: Up to twice the amount of the cheque — in a case involving a cheque of Rs. 50 lakhs, the fine could reach Rs. 1 crore.
Default sentence: If the fine is not paid within the court-directed period, the accused may be sent to prison.
Nature of offence: Cognizable and non-bailable under the NI Act’s criminal framework, though in practice bail is routinely granted at the trial stage.
Compoundable: Yes — the offence is compoundable with the complainant’s consent, which means settlement remains an option even during appeal.

Jurisdiction — Where to File the Case

The original complaint under Section 138 NI Act is filed before the Judicial Magistrate First Class having jurisdiction over the area where the cheque was presented for payment and dishonoured, as settled in Dashrath Rupsingh Rathod v. State of Maharashtra, 2014, where the Supreme Court clarified territorial jurisdiction for NI Act cases. The appeal against a Magistrate’s conviction lies before the Sessions Court of the same district under Section 374 BNSS. If the Sessions Court also rules against the accused, a further revision or appeal can be preferred before the High Court. Now, before you act — jurisdiction isn’t a formality. Filing before the wrong court wastes precious limitation period days, and you can’t afford that.

What if Police Refuse to File FIR?

Section 138 NI Act cases are complaint-based matters. They’re not initiated by police FIR. The complainant (payee) files a private complaint directly before the Magistrate, so the FIR mechanism simply doesn’t apply here. But if there are associated offences — fraud, cheating under BNS — alleged alongside the cheque bounce, and police decline to register an FIR:

Approach the Superintendent of Police with a written complaint under Section 173(4) BNSS.
File a private complaint before the Magistrate under Section 175(3) BNSS.
File a writ petition before the High Court seeking directions to register the FIR.
As settled in Lalita Kumari v. Government of UP, 2014, police are mandatorily required to register an FIR when a cognizable offence is disclosed — use this precedent in your written complaint.

Rights of the Accused

Right against self-incrimination: Under Article 20(3) of the Constitution, no accused can be compelled to be a witness against themselves — this right remains alive during appeal proceedings.
Right to legal representation: Article 22 of the Constitution guarantees the right to consult and be defended by an advocate of choice at every stage including appeal.
Right to copy of judgment: The convicted person is entitled to a certified copy of the Magistrate’s judgment to prepare grounds of appeal.
Right to suspension of sentence: Under Section 430 BNSS, the appellate court can suspend the sentence pending appeal, preventing imprisonment during the appeal process.
Right to know grounds of conviction: The judgment must record reasons — any failure to assign reasons is itself a ground of appeal.

Bail Provisions

Conviction changes things. Once the Magistrate convicts, the accused’s bail status shifts immediately — if the accused was on bail during trial, that bail typically ceases on conviction. The appellate court must be approached without delay under Section 430 BNSS for suspension of sentence and continuation of bail pending appeal. This application is heard urgently. Sessions Courts generally grant it in NI Act matters if the appeal discloses arguable grounds. Anticipatory bail under Section 482 BNSS may be relevant if the accused apprehends arrest due to the default fine. Bail conditions typically include furnishing a surety, depositing a portion of the fine amount, and appearance on all hearing dates. Get this done the moment the appeal is filed. Don’t wait.

Quashing of FIR / Case

In NI Act complaints, quashing is sought before the High Court under Section 528 BNSS (inherent powers). Grounds for quashing include: the complaint disclosing no prima facie offence (e.g., the cheque was not issued for a legally enforceable debt), the complaint being filed beyond limitation under Section 142 NI Act, or the parties having reached a full and final settlement. As held in Meters and Instruments Pvt. Ltd. v. Kanchan Mehta, 2017 (Supreme Court), settlement between parties in a Section 138 case is a strong ground for quashing since the primary object is compensating the victim. Make no mistake — quashing becomes a viable parallel strategy when settlement negotiations are progressing alongside the appeal. Both tracks can run together.

If You Are the Victim

If you are the complainant and the accused has filed an appeal, ensure you are properly represented before the Sessions Court through your own advocate — don’t rely solely on the government prosecutor in NI Act matters.
File a reply to the stay/suspension application promptly, pointing out the accused’s financial capacity to pay and the risk of delay.
If the accused offers settlement during appeal, obtain a properly drafted compromise deed and approach the court for compounding under Section 147 NI Act.
Keep all original bank documents, dishonour memos, legal notices, and postal acknowledgements safely — these will be relied upon during appeal hearings.
Track all hearing dates actively — appellate courts can dispose of matters swiftly if either side remains unrepresented.

Documents You Must Keep Ready

Aadhaar card and PAN card of both accused persons
Certified copy of the Magistrate’s judgment (conviction order)
Original cheque (or photocopy on record) and bank dishonour memo
Copies of all legal notices sent under Section 138 NI Act and postal receipts / acknowledgements
Complete trial court record — complaint, evidence affidavits, cross-examination transcripts
Bank account statements of the accused for the relevant period
Any correspondence (written or digital) between the parties regarding the transaction
Proof of any prior payments or settlements between the parties

What Evidence Is Required?

The original dishonoured cheque: Primary evidence of the offence — the cheque itself, bearing the accused’s signature.
Bank’s dishonour memo: Primary evidence confirming the cheque was returned unpaid, and the reason (insufficient funds, account closed, etc.).
Legal notice under Section 138 NI Act: Proof that notice was served on the drawer within thirty days of dishonour, and that payment was not made within fifteen days of receipt.
Postal tracking records / courier receipts: Proof of service of the legal notice — critical, as held in K. Bhaskaran v. Sankaran Vaidhyan Balan, 1999.
Account statements: Showing the underlying transaction and the state of the accused’s account on the date of presentation.
Correspondence and agreements: Any document evidencing the legally enforceable debt or liability for which the cheque was issued.
Defence evidence: Documents showing the cheque was issued as security, or that the debt was already discharged — these are secondary but crucial for rebutting the Section 139 presumption.

How Courts Typically Approach Such Cases

Sessions Courts hearing NI Act appeals generally proceed with reasonable efficiency compared to original trial matters. The appellate court doesn’t conduct a fresh trial. It examines whether the Magistrate’s findings were legally sustainable on the evidence already on record — that’s the scope, and it matters a great deal when framing your grounds of appeal. Grounds typically include errors in appreciation of evidence, incorrect application of the Section 139 presumption, or failure to consider the accused’s defence. Courts are receptive to stay applications in these matters and ordinarily grant them when arguable grounds are shown. Expect hearings to be scheduled at intervals of four to eight weeks at the Sessions Court level.

Timeline of Legal Process

Day 1-5: Obtain certified copy of Magistrate judgment; brief your advocate; prepare grounds of appeal.
Day 5-15: File criminal appeal before Sessions Court under Section 374 BNSS along with stay/suspension application under Section 430 BNSS.
Week 2-4: First hearing — court admits appeal and decides on stay; typically granted if arguable grounds exist.
Month 1-3: Sessions Court calls for trial court record; notices issued to complainant / State.
Month 3-6: Arguments on preliminary objections if any; sessions of main appeal hearing begin.
Month 6-18: Full hearing of appeal — arguments by both sides on merits.
Month 12-24: Judgment by Sessions Court — acquittal, modification of sentence, or confirmation of conviction.
Post Sessions judgment: Further revision or appeal before High Court if required.

Estimated Costs Involved

Court fees for appeal: Nominal fixed fee at Sessions Court level — typically Rs. 200 to Rs. 500 for criminal appeals; varies by state.
Advocate consultation fee: Rs. 10,000 to Rs. 50,000 for initial consultation and case assessment in NI Act appellate matters.
Advocate’s appearance fees: Rs. 5,000 to Rs. 25,000 per hearing at Sessions Court level, depending on counsel’s seniority and

Advocate Sudhir Rao, Supreme Court of India

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Cheque Bounce Conviction Appeal: What to Do When the Magistrate Judgment Goes Against You