Appeal Against a Cheque Bounce Conviction and the 20% Deposit

Can I appeal a cheque bounce conviction, and to which court?

Yes. A conviction under section 138 by a Judicial Magistrate is appealable to the Court of Session under section 415 of the Bharatiya Nagarik Suraksha Sanhita 2023 (section 374 of the old CrPC). In Delhi the appeal goes to the Sessions Court of the district where the trial court sits, so a conviction from the NI Act court at Dwarka goes to the Sessions Judge at Dwarka, who usually marks it to an Additional Sessions Judge. In Noida it goes to the Sessions Court at Surajpur, and in Ghaziabad to the Sessions Court in the district court complex.

The appeal is not limited to points of law. The Sessions Court reads the whole trial record, the complaint, the evidence affidavits, the cross-examination, the statement of the accused and the documents, and can reach its own view on the facts. It can confirm the conviction, set it aside and acquit, reduce the sentence or the compensation, or in a rare case send the matter back for a fresh trial on a specific point.

Even a small sentence is appealable. People sometimes think that if the court only imposed a fine, or imprisonment till the rising of the court, there is nothing to appeal. A conviction is a conviction: it stays on record, and the compensation order can be recovered from you as if it were a fine, with a default sentence if you do not pay. If the finding is wrong, the appeal is the place to fix it.

Appeal and deposit at a glance

The numbers that matter after a judgment in a section 138 case.

The deposit under section 148 is in addition to any interim compensation already paid under section 143A at the trial stage. The two are separate orders under separate sections, and courts treat them that way unless a specific order says otherwise.

How many days do I have to file a cheque bounce appeal?

Thirty days. Article 115 of the Limitation Act 1963 gives 30 days for an appeal against a conviction to a court other than the High Court, counted from the date of the sentence. Section 12 of the Limitation Act excludes the time taken to obtain a certified copy of the judgment, so the clock effectively starts once the copy is ready, provided you applied for it promptly. Apply for the certified copy on the day of the judgment. Many people lose a week simply because nobody filed the copy application.

If the 30 days have passed, file the appeal anyway with an application for condonation of delay under section 5 of the Limitation Act, supported by an affidavit that explains each period of delay with dates. Sessions Courts in Delhi are not harsh about short delays in criminal appeals when the explanation is genuine, but a vague line such as 'the appellant was unwell' with no medical paper is an invitation to dismissal. Delay also creates a practical risk: if the period of suspension granted by the trial court has lapsed, the complainant can ask the Magistrate to issue a warrant to execute the sentence.

The date of the judgment and the date of the order on sentence are sometimes different, because the Magistrate hears the parties on sentence after recording the conviction. Count from the order on sentence, since the appeal is against both, and keep both orders in the appeal paper book.

What happens on the day the Magistrate convicts?

Most section 138 sentences are below three years, so the trial court itself can suspend the sentence for a limited period and release the convict on bail to file an appeal, under section 430(3) BNSS. This is routine. The convict, or the advocate on his behalf, applies orally or in writing as soon as the sentence is pronounced, furnishes a bail bond with a surety, and the court records that the sentence is suspended for 30 days or so. Bring a surety to court on the day of judgment if there is any chance of conviction. People who come alone sometimes spend a night in custody that could have been avoided.

The suspension by the trial court is temporary. It buys time to file the appeal, and it ends if no appeal is filed. Once the appeal is filed, the appellant applies to the Sessions Court for suspension of sentence pending the appeal under section 430(1). That second order is the one that carries the condition of deposit under section 148, and it is the order you need to prepare for.

If you were absent on the day of judgment and the court convicted you and issued a warrant, the position is harder but not hopeless. File the appeal promptly, appear before the Sessions Court with an application for suspension and bail, and explain the absence. Our post on summons or warrant in a cheque bounce case covers how warrants are handled at the trial stage.

Is the 20% deposit under section 148 mandatory?

It is the normal rule, but not an absolute one. Section 148(1) says that in an appeal by the drawer against a conviction under section 138, the appellate court 'may' order the appellant to deposit a sum of at least 20% of the fine or compensation awarded by the trial court. In Surinder Singh Deswal v Virender Gandhi (2019), the Supreme Court read the provision purposively: the object of the 2018 amendment was to stop drawers from using appeals to delay payment, so appellate courts would normally be justified in imposing the deposit. The Court also held that section 148 applies to appeals against convictions even where the complaint was filed before the amendment came into force.

In Jamboo Bhandari v M.P. State Industrial Development Corporation (2023), the Supreme Court clarified the other side. The word 'may' does leave room for discretion. When the appellate court hears an application for suspension of sentence, it can decide that a case is exceptional and suspend the sentence without the deposit, or with a smaller one, but it must record reasons for doing so. The Court noted that a blanket refusal to consider an exception, treating 20% as compulsory in every case, is itself an error. In that case the Sessions Court and the High Court had treated the deposit as mandatory, and the Supreme Court sent the matter back.

So the honest position is this. If you ask for suspension without any deposit and give no reason, expect a 20% condition. If you have a real reason why the deposit would be unjust, or would make the right of appeal meaningless, put it on affidavit with documents, and the court is bound to consider it.

20% of what? Working out the deposit amount

The base is the fine or compensation awarded by the trial court, not the cheque amount. This is the single most common miscalculation. Section 138 allows a fine of up to twice the cheque amount, and Magistrates frequently award compensation under section 395(3) BNSS (old section 357(3) CrPC) equal to the cheque amount plus interest, or one and a half times the cheque, or close to double. Twenty per cent of that figure can be well above 20% of the cheque.

Where the trial court imposed only imprisonment and no fine or compensation, there is nothing for section 148 to bite on, though the appellate court may still impose other reasonable conditions. Where the order combines a fine with a direction that compensation be paid out of it, check which figure the order actually requires the accused to pay; that is the figure the appellate court will work from. Read the operative part of the order on sentence carefully and calculate before the first hearing of the appeal, so that your advocate is not doing arithmetic in open court.

Twenty per cent is the minimum. The court can order more, and some do, especially where the trial lasted many years and the drawer paid nothing in between. Anything already paid as interim compensation under section 143A is credited in the final accounting at the end, but it does not automatically reduce the section 148 deposit unless the appellate court says so. If you paid a large interim amount at trial, point it out and ask the court to take it into account when fixing the figure.

When will a court waive or reduce the 20% deposit?

The test that comes out of Jamboo Bhandari is whether imposing the deposit would be unjust, or would in effect deprive the appellant of the right of appeal. Courts have not drawn up a closed list, but the cases where a waiver or reduction is realistically argued tend to share one of two features: a serious flaw in the conviction that is visible on the face of the record, or genuine incapacity to pay that is proved with documents rather than asserted.

A flaw on the face of the record means something the Sessions Judge can see in ten minutes. The complaint was filed after the limitation period with no application for condonation. The legal notice was sent more than 30 days after the return memo. The cheque was presented after its validity. The complaint against a director contains no averment that he was in charge of the company's business. The return memo is for a reason that does not attract section 138 at all. Where the defence is factual and needs a full reading of the evidence, such as a disputed loan, courts usually impose the deposit and leave the merits for the final hearing.

Incapacity is harder to prove than people expect. A statement that business is bad is not enough. Courts look for income tax returns, bank statements for the last year, proof of other liabilities, medical records where illness is the reason, and an honest account of assets. When Advocate B.K. Singh prepares a waiver application, he files the financial papers with the application itself rather than promising them later, because an appellate judge who sees an unsupported plea of poverty on the first date rarely revisits the point.

What usually persuades the court, and what does not

These are patterns from practice, not rules. Each case turns on its own record.

• Persuades: a limitation defect. A notice sent after 30 days of the return memo, or a complaint filed late without condonation, goes to the root of the case.
• Persuades: no averment against a director or partner. Where a person was convicted only because he was a director, and the complaint never said he was in charge of the business, the conviction is open to serious challenge.
• Persuades: documented hardship. Bank statements, ITRs and proof of other debts showing the appellant cannot raise the money within 90 days.
• Persuades: substantial payment already made. Proof that a large part of the cheque amount was paid before or during the trial, by receipts or bank entries.
• Does not persuade: 'the cheque was a security cheque' with nothing more. That argument needs evidence and a full hearing; see our post on security cheques and section 138.
• Does not persuade: delay tactics at trial. A record full of adjournments taken by the accused tends to harden the court's view on the deposit.
• Does not persuade: a promise to settle soon. Courts will often give time for settlement, but they rarely waive the deposit on that basis alone.

How to file a cheque bounce appeal in a Delhi Sessions Court

The order of work, from the day of judgment to the first hearing.

1. Secure suspension on the day of judgment

   Apply to the Magistrate under section 430(3) BNSS as soon as the sentence is pronounced. Furnish a bail bond and surety. Note the date until which the sentence is suspended.

2. Apply for the certified copy

   File the copy application the same day for both the judgment and the order on sentence. Collect the copy as soon as it is ready and note the dates on it, which matter for limitation.

3. Draft the appeal memo

   Set out the facts briefly and then the grounds, each as a separate numbered point. Good grounds are specific: the date of the return memo and the date of the notice, the paragraph of the complaint that lacks an averment, the part of the cross-examination the Magistrate ignored.

4. Prepare the suspension application

   File a separate application under section 430(1) BNSS for suspension of sentence and bail. If you want the deposit waived or reduced, say so expressly, give reasons and attach the documents.

5. File with the Sessions Court

   File the appeal in the district Sessions Court with a vakalatnama, the certified copies, the applications and a small court fee. In Delhi the filing counter will allot it to an Additional Sessions Judge.

6. Attend the first hearing

   The appellant should usually be present. The court hears the appeal on admission, issues notice to the complainant and the State, calls for the trial court record, and decides suspension, normally with a deposit condition.

7. Comply with the deposit order on time

   Deposit within 60 days by the mode the court directs, and file proof. If you need more time, apply before the 60 days end, not after.

The appeal then waits for the trial court record to arrive and for the complainant to be served. Final arguments in Delhi Sessions Courts are heard on the record; fresh evidence is allowed only in limited cases under the appellate court's power to take additional evidence.

Documents to gather for the appeal

Collect these in the first week. Missing papers are the usual reason the first hearing is wasted.

What if I cannot deposit within 60 days?

Ask for more time before the 60 days run out. Section 148(2) allows the court to extend the period by up to 30 days on sufficient cause. The application should say how much you have arranged, how much remains, and where the rest will come from. Courts are more willing to extend where part of the amount has already been deposited, because it shows good faith.

If the deposit is not made, the usual consequence is that the condition attached to the suspension of sentence fails. The complainant applies, the court recalls the suspension, and the sentence becomes executable. Courts have differed on whether the appeal itself can be dismissed for non-deposit, and the better view is that the appeal survives and is heard on merits, but that is cold comfort to someone who is in custody while it is pending. Treat the deposit date as the most important date in the appeal.

If the deposit order itself is unreasonable, for example because the court refused to consider a waiver application at all, or calculated 20% on the wrong base, the remedy is a petition to the High Court against that order. The High Court will not substitute its own figure lightly, but it does interfere where the Sessions Court failed to apply its mind, which is what happened in Jamboo Bhandari.

Can the complainant withdraw the deposit while the appeal is pending?

Yes, if the appellate court allows it. Section 148(3) lets the court release the deposited amount to the complainant at any time during the appeal. Complainants usually apply soon after the deposit is made. Appellants often oppose release, arguing that the money will be hard to recover if the appeal succeeds; courts sometimes release it against an undertaking or security, and sometimes keep it in a fixed deposit until the appeal is decided.

If the appellant is acquitted, the proviso to section 148(3) requires the court to direct the complainant to repay the released amount with interest at the bank rate published by the Reserve Bank of India at the beginning of the relevant financial year, within 60 days, extendable by 30. In practice, recovering that money from a complainant who has spent it can take further proceedings. That is a fair argument against early release where the appeal raises a strong legal point, and it should be made at the release hearing rather than later.

What does the Sessions Court actually look at in a cheque bounce appeal?

The appellate court starts from the statutory presumption. Once the drawer admits the signature on the cheque, section 139 presumes that the cheque was issued for a legally enforceable debt, and the burden shifts to the accused to rebut it on a preponderance of probabilities. Many appeals fail because the defence at trial was a bare denial with no evidence, no explanation for how the complainant came to have the signed cheque, and no cross-examination on the source of the money. The appellate court cannot invent a defence that was never raised.

Appeals succeed most often on points that the trial court got wrong in law or overlooked in the record. The timeline is the first thing to check: cheque date, presentation date, return memo date, notice date, date of receipt of notice, and complaint date. A point Advocate B.K. Singh often makes to clients is that the dates on the postal tracking report decide more appeals than any argument about the loan. After the timeline come the averments against directors and partners, the authority of the person who filed the complaint for a company, whether the return reason attracts section 138, and whether the defence evidence on the debt was considered at all.

The statement of the accused under section 351 BNSS (old section 313 CrPC) also matters. If the Magistrate did not put an important piece of evidence to the accused, and relied on it to convict, that is a recognised ground. So is a judgment that does not deal with the defence evidence, or that treats the presumption as conclusive. For the wider question of when a criminal appeal is the right remedy and when a revision is, see our post on criminal appeal or revision.

Can I settle the case while the appeal is pending?

Yes. Section 147 makes every offence under the Act compoundable, and compounding is allowed at the appellate stage. If the complainant agrees, the parties file a joint application before the Sessions Court, the court records the settlement, and the conviction is set aside with the effect of an acquittal. The deposit already made is usually adjusted towards the settlement amount.

The Supreme Court revised the compounding cost guidelines in Sanjabij Tari v Kishore S. Borcar (September 2025). Under the revised scheme, compounding before the Sessions Court or the High Court in appeal or revision is on payment of costs of 7.5% of the cheque amount, deposited with the legal services authority or as the court directs. That cost is lower than it used to be, but it still makes a settlement before the trial court's judgment cheaper than one after it. Our post on settling a cheque bounce case at every stage sets out the costs and the paperwork in detail.

The complainant's side: appeal against acquittal or low compensation

A complainant who loses at trial has a direct route. In Celestium Financial v A. Gnanasekaran (April 2025), the Supreme Court held that the complainant in a section 138 case is a 'victim' and can appeal against an acquittal under the proviso to section 372 of the old CrPC, now the proviso to section 413 BNSS, without first seeking special leave of the High Court under section 378(4) CrPC (section 419(4) BNSS). The victim's appeal lies to the court to which an appeal against conviction would ordinarily lie, so for a Magistrate's acquittal that is the Sessions Court.

The same proviso covers an order imposing inadequate compensation. A complainant who won but feels the compensation is far below the cheque amount and interest can appeal on that ground. Section 148 does not apply to complainants; there is no deposit condition on a complainant's appeal.

Complainants should note the time. The safest course is to file within the period that applies to an appeal to the Sessions Court and to apply for condonation where there is any doubt, because limitation for victims' appeals has been argued in different ways in different courts.

After the Sessions Court: revision and the Supreme Court

There is no second appeal on facts. If the Sessions Court confirms the conviction, the next remedy is a criminal revision petition before the High Court under sections 438 and 442 BNSS. Revision is narrower than appeal: the High Court looks for an error of law, a perverse finding or a failure to consider material evidence, not a fresh appreciation of the facts. In Delhi these petitions are filed in the Delhi High Court; in Noida and Ghaziabad they go to the Allahabad High Court.

The High Court can suspend the sentence during revision and often imposes conditions similar to section 148, though the section does not apply to revisions by its own terms. Settlement remains open at this stage too. After the High Court, a special leave petition under Article 136 can be filed in the Supreme Court within 90 days; our post on filing a special leave petition explains what that involves, and our Supreme Court practice page covers the filing through an Advocate-on-Record. Few cheque cases justify that cost unless a real question of law is involved.

What to do this week if you have been convicted

In order of urgency.

• Confirm the date until which the trial court has suspended the sentence, and diarise it.
• Apply for certified copies of the judgment and the order on sentence, if not done on the day.
• Calculate 20% of the fine or compensation, not of the cheque.
• Collect receipts for any interim compensation or other payments already made.
• Collect bank statements and ITRs if you will ask for a waiver or reduction.
• Ask your advocate to check the dates: return memo, notice, receipt, complaint.
• Arrange a surety who can attend the Sessions Court.
• Decide whether you want to explore settlement, and at what figure, before the first hearing.
• File the appeal well within 30 days; do not wait for the last day.

Mistakes that make appeals harder

The first mistake is treating the appeal as a fresh trial. Unless the court allows additional evidence, the appeal is decided on what was proved below. If the defence never produced the ledger, the email or the witness at trial, the appellate court will not see it. The second is missing the deposit date, which turns a manageable appeal into an arrest. The third is a waiver application with no papers. The fourth is a settlement agreed in the corridor and never recorded, which leaves the conviction standing and the money paid.

Our post on how a section 138 case runs in Delhi courts explains the trial stage that produced the record you are now appealing, and is worth reading before you instruct anyone on the appeal.

If you want an advocate to read the judgment and tell you the deadline and the likely deposit before you decide, the team of Advocate B.K. Singh can look at the papers; send them through our online enquiry form. If arrest or custody is the immediate worry, our bail lawyer page explains how bail and suspension of sentence work together, and the criminal lawyer in Delhi page sets out the court complexes where these appeals are heard.