Simultaneous Civil And Criminal Proceedings Under Section 138 Of The Negotiable Instruments Act, 1881: Legislative Evolution, Judicial Doctrine, And Practical Imperatives
Vishnu Dubey, Civil Judge Junior Division, Madhya Pradesh
ABSTRACT
The dishonour of a cheque under Section 138 of the Negotiable Instruments Act, 1881 occupies a singular position in Indian jurisprudence straddling the boundary between civil remedy and criminal sanction. This article traces the historical trajectory of cheque-bounce law from its pre-1988 civil-only avatar, through the transformative insertion of Chapter XVII by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, to the present-day regime shaped by the Negotiable Instruments (Amendment) Act, 2002, the Negotiable Instruments (Amendment) Act, 2015, and the paradigm shift brought about by the Bharatiya Nagarik Suraksha Sanhita, 2023. The article argues that the criminal remedy under Section 138 was never intended to displace the civil remedy; rather, both avenues co-exist and may be pursued simultaneously a position consistently affirmed by the Supreme Court. It further examines the quasi-civil nature of Section 138 proceedings as elucidated in P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd., (2021) 6 SCC 258, the landmark guidelines issued in Sanjabij Tari v. Kishore S. Borcar, 2025 INSC 1158, and the evidentiary mechanics of retrieving a cheque exhibit from one proceeding for production in another a practical challenge that trial courts confront with regularity. The article concludes with a call for legislative clarity and a model procedural framework to harmonise the dual-track approach.
Keywords: Section 138 NI Act, Cheque Dishonour, Civil Remedy, Criminal Proceedings, Simultaneous Proceedings, Quasi-Criminal, BNSS 2023, Sanjabij Tari, Exhibit Retrieval.
