By S&S Co. Advocates & Solicitors · Published 3 November 2026 · Informational content, not legal advice: see our disclaimer
A dishonoured cheque under Section 138 of the Negotiable Instruments Act, 1881 is both a criminal offence and evidence of a civil debt, and nothing in the law stops a payee from pursuing both a criminal complaint and a civil recovery suit over the same cheque at the same time. What the law does not allow is collecting the same money twice; amounts recovered through one track are generally set off against the other. This guide is about the choice between the two routes and what each actually gets you, not the step-by-step mechanics of filing a Section 138 complaint itself, which our existing guide on the cheque bounce notice and complaint process covers in detail.
The short version: a Section 138 complaint moves faster toward a result because of its statutory presumptions and summary procedure, but that result is primarily compensation decided by a criminal court, not a decree you can straightforwardly execute against the drawer's other assets the way a civil decree can be. A civil recovery suit, particularly a summary suit under Order XXXVII of the Code of Civil Procedure, takes longer to reach a decree but gives you a more conventional, executable money decree. Many payees with a reasonably large sum at stake end up filing both.
What each route is actually built to do
Section 138 makes it an offence to issue a cheque that is dishonoured for insufficiency of funds or because it exceeds an arrangement with the bank, where the cheque was issued in discharge of a legally enforceable debt or liability and the drawer fails to make payment within fifteen days of receiving a demand notice. The complaint is tried by a Magistrate, and the Act gives the complainant real procedural advantages: Section 139 presumes, until the drawer proves otherwise, that the cheque was issued for a debt or liability, which shifts the practical burden onto the drawer to explain the cheque rather than leaving the payee to prove the underlying transaction from scratch.
A civil recovery suit, by contrast, is a conventional money claim. The cheque is useful evidence of the debt, but the suit is not limited to the cheque amount in the way a Section 138 complaint is, and can include interest and other amounts due under the underlying transaction that go beyond what the cheque itself covered. Where the claim qualifies, Order XXXVII of the CPC allows a summary procedure specifically for suits on negotiable instruments, under which the defendant has no automatic right to contest the claim and must apply for leave to defend, which is granted only where the defence raises a genuinely triable issue rather than a bare denial.
Interim compensation versus a civil decree
Section 143A of the Negotiable Instruments Act allows the Magistrate, once the drawer has pleaded not guilty in a summons case or summary trial, to order interim compensation to the complainant, capped at twenty percent of the cheque amount, before the trial has even concluded. The Supreme Court has confirmed that this power is discretionary rather than automatic, and that a court granting the maximum amount has to give reasons for doing so; the pendency of a related civil suit is one of the factors a Magistrate may weigh in deciding whether and how much interim compensation to order.
A civil suit offers no equivalent interim payment as a matter of right, but what it offers at the end is a money decree in the ordinary civil sense, executable through attachment and sale of the judgment debtor's property across the range of execution remedies available under the Code. A Section 138 conviction, by contrast, results in compensation under the sentencing provisions of criminal law, and enforcing that compensation if the drawer does not pay voluntarily can itself require separate recovery steps; it is not automatically self-executing against the drawer's assets the way a civil decree is.
Running both without double recovery
Courts have consistently rejected the argument that filing both a criminal complaint and a civil suit over the same cheque amounts to double jeopardy or is otherwise impermissible; the two proceedings serve different purposes and apply different standards of proof, criminal guilt beyond reasonable doubt against civil liability on the balance of probabilities, so an acquittal in the criminal case does not by itself bind a civil court trying a suit on the same cheque or transaction, and a civil decree does not by itself determine criminal guilt either.
What courts have been firm about is preventing the complainant from actually keeping both recoveries for the same debt. Where money has already been recovered through a civil decree on the same cheque, a criminal court has been held entitled to set that off against any compensation it would otherwise order, reasoning by analogy from the Code's general rule against a victim recovering the same loss twice over. Keep clear, contemporaneous records of what has been recovered through which proceeding if you are running both tracks, since you or your lawyer will need to disclose this to whichever court decides second.
Practical factors in choosing where to start
If speed and leverage matter more than the size of the final figure, and the cheque amount reasonably reflects what is actually owed, starting with the Section 138 complaint, sending the statutory demand notice promptly after dishonour, usually makes sense, since the criminal process and its presumption in the complainant's favour often brings a settlement faster than a civil suit would on its own. If the amount owed significantly exceeds the cheque amount, because of accrued interest, other invoices, or a larger underlying transaction that the cheque only partly covered, a civil suit, filed as a summary suit under Order XXXVII where the facts qualify, captures the fuller claim in a way the criminal complaint cannot.
Where the sum is substantial and the drawer has traceable assets, filing both is common and defensible: the demand notice and complaint start the statutory clock on the criminal side, while the civil suit is filed in parallel to secure an executable decree covering the full amount owed rather than only the cheque figure. Make sure whoever drafts both sets of pleadings keeps the factual narrative consistent across the two, since an inconsistency between what is pleaded in the civil suit and what is alleged in the criminal complaint is exactly the kind of gap a defence lawyer will use in either forum.
Limitation: do not let one proceeding eclipse the other
The statutory timeline for a Section 138 complaint is tight and specific to the Act: the complaint has to follow the fifteen-day payment window after the demand notice, within the period the Act allows for filing once that window closes, and courts have been strict about this. A civil suit for recovery on the underlying debt runs on its own, separate limitation period under the Limitation Act, which is considerably longer, but that longer period is not a reason to delay; waiting to see how the criminal complaint turns out before deciding whether to file a civil suit is a common and avoidable mistake, since evidence and witnesses become harder to manage the longer a parallel claim is left unfiled.
If you are not sure which route to prioritise, treat the criminal complaint's shorter deadline as the one that cannot wait, and treat the decision on a civil suit as something to make promptly rather than as an afterthought once the criminal case is already underway.
Frequently Asked Questions
Can I file a Section 138 complaint and a civil suit for the same cheque at the same time?
Yes. Courts have held that a pending civil suit does not bar the criminal complaint and vice versa, since the two proceedings serve different purposes and apply different standards of proof. You cannot, however, keep the same money twice over from both.
If I'm acquitted in the Section 138 case, does that end my civil claim too?
No. A criminal acquittal does not automatically bind a civil court trying a suit on the same cheque or transaction, because the civil suit is decided on a different and lower standard of proof. Many civil claims proceed and succeed even after a criminal acquittal on the same facts.
Can the Magistrate order the drawer to pay me something before the trial finishes?
Possibly, under Section 143A, once the drawer has pleaded not guilty, capped at twenty percent of the cheque amount. This is discretionary, not automatic, and the Magistrate has to give reasons if awarding the full amount.
Is a summary civil suit under Order XXXVII faster than an ordinary suit?
Generally yes, because the defendant has no automatic right to contest it and must first obtain the court's leave to defend, which is refused where the defence does not raise a genuinely triable issue. It still takes materially longer to reach a decree than the statutory clock on a Section 138 complaint.
What happens if I recover money in the civil suit before the criminal case ends?
Disclose the recovery to the criminal court. Courts have held that an amount already recovered civilly on the same cheque should be set off against any compensation ordered in the criminal proceeding, so that the total recovery does not exceed what is actually owed.
References & Further Reading
The provisions and rulings below were relied on for this guide. The position can change with amendments and later decisions, so check the current text and the latest case law before acting on any of it.
- Negotiable Instruments Act, 1881, Sections 138 (dishonour of cheque), 139 (presumption in favour of the holder), 142 (cognizance and limitation for filing) and 143A (interim compensation)
- Code of Civil Procedure, 1908, Order XXXVII (summary procedure on negotiable instruments, including the leave-to-defend requirement)
- Rakesh Ranjan Shrivastava v. State of Jharkhand, 2024 INSC 205 (interim compensation under Section 143A is discretionary, with reasons required for the maximum award)
- Bhai Mool Singh v. Permanent Lok Adalat and connected authority on leave to defend under Order XXXVII
- Limitation Act, 1963 (separate limitation governing a civil recovery suit on the underlying debt)
- Related guide on this site: "Cheque Bounce Under Section 138 NI Act: Notice, Complaint and Timeline Explained"