Can I file a civil suit instead of Section 138 claim?

Answer

A:

Yes, you can file a civil suit instead of, or even along with, a Section 138 NI Act complaint – but the two are different remedies. Let me break it down for you:

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1. Section 138 (Criminal Remedy)

• Based on dishonour of cheque.

• Filed in Magistrate Court.

• Purpose: To punish the drawer with jail up to 2 years and/or fine.

• Outcome: Many cases end in settlement/compounding because the drawer wants to avoid criminal conviction.

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2. Civil Suit (Recovery of Money)

• Filed under Order 37 CPC (Summary Suit for Recovery) or a normal civil recovery suit.

• Purpose: To recover the cheque amount with interest and costs.

• Outcome: Court can pass a money decree, enforceable against the drawer’s property.

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3. Key Differences

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4. Can Both Be Filed?

• Yes, you can file both simultaneously:

  • 138 NI Act case for criminal liability.

  • Civil suit for actual recovery of cheque amount + interest.

• Many lawyers advise doing both:

  • Criminal pressure under Section 138

  • Civil decree for enforceable recovery

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5. When Civil Suit is Better

• If limitation for Section 138 is missed (notice not sent in time).

• If you only want money back, not criminal punishment.

• If cheque was a security cheque and doesn’t strictly qualify under Section 138.

Yes, you can file a civil suit instead of a Section 138 complaint. But the most effective approach is often to pursue both – civil for recovery, criminal for pressure..