A cheque bounce case under Section 138 of the Negotiable Instruments Act arises when a cheque issued towards a legally enforceable debt is dishonoured and statutory requirements are fulfilled. If the accused repeatedly fails to appear, the court may issue an NBW. Though serious, an NBW does not mean conviction. The accused may seek its recall or cancellation by explaining the absence.
What is an NBW in a Cheque Bounce Case?
A Non-Bailable Warrant is a coercive process issued by a court directing the police or another authorised authority to secure the presence of an accused before the court.
In a cheque bounce proceeding, an NBW may be issued where the accused repeatedly fails to appear despite having been served with summons or despite earlier directions of the court.
The purpose of the warrant is generally to secure the presence of the accused before the court and not to punish the accused merely for being absent.
The seriousness of an NBW means that the accused should not ignore it. Immediate legal steps should be taken to seek appropriate relief from the court.
Why Does the Court Issue an NBW?
An NBW may be issued for several reasons, depending upon the procedural history of the case. Common circumstances may include:
- Repeated absence of the accused;
- Failure to appear despite service of summons;
- Failure to comply with an earlier direction of the court;
- Non-appearance after obtaining an exemption;
- Failure to appear after undertaking to remain present;
- Absence without providing a satisfactory explanation; or
- Conduct indicating that the accused is avoiding the court proceedings.
The exact reason should be checked from the order sheet of the case.
An accused should therefore first obtain and examine the latest order by which the NBW was issued.
Difference Between Summons, Bailable Warrant and NBW
| Particulars | Summons | Bailable Warrant | Non-Bailable Warrant |
| Purpose | Calls the accused to appear before court | Secures appearance of accused | Secures presence where court considers stronger process necessary |
| Nature | Less coercive | More coercive | More serious coercive process |
| Arrest | Normally no arrest merely by receiving summons | Arrest may occur, subject to bail | Arrest may be effected pursuant to warrant |
| Bail | Generally not applicable at summons stage | Bail is ordinarily available subject to law | Bail may need to be sought before the appropriate court |
| Response | Appear before court | Appear and seek appropriate relief | Immediately approach court for recall/cancellation and bail protection where required |
The procedure can vary depending upon the stage of proceedings and the circumstances of the individual case.
Can an NBW Be Cancelled or Recalled?
Yes, the NBW can, in the appropriate circumstances, be recalled or cancelled by the court that issued it.
The accused generally needs to mainly explain circumstances that resulted in the non-appearance as well as demonstrate willingness to participate in proceedings.
Courts may consider the factors such as:
- Whether the absence was intentional;
- Whether summons were properly served;
- Whether the accused had previously appeared;
- Whether the accused was represented through counsel;
- Whether there was a genuine reason for absence;
- Whether the accused is willing to appear regularly in future; and
- The overall conduct of the accused during the proceedings.
There is no universal guarantee that an NBW will automatically be cancelled. The relief depends upon the facts of the case and the discretion of the competent court.
How to Get an NBW Cancelled in a Cheque Bounce Case
The accused should generally take prompt action after learning about the NBW. The usual steps may include:
1. Obtain the Latest Order
First, obtain a copy of the order by which the court issued the NBW. The order sheet will help determine:
- Why the warrant was issued;
- Whether previous warrants were issued;
- Whether summons were served;
- Whether the accused was represented;
- Whether any exemption from personal appearance was granted; and
- What the court expects from the accused.
2. Consult an Experienced Lawyer
The accused should immediately consult a lawyer familiar with cheque bounce and criminal proceedings.
The lawyer can examine the procedural history and determine whether an application for recall, cancellation, or modification of the warrant should be filed before the same court or whether any additional legal remedy is required.
3. Prepare an Application for Recall/Cancellation
An appropriate application should be filed before the concerned court seeking recall or cancellation of the NBW.
The application should clearly explain the reason for the absence. For example, the absence may have resulted from:
- Medical emergency;
- Incorrect information regarding the hearing date;
- Unavoidable travel circumstances;
- Non-communication of the hearing date;
- Mistaken understanding by the accused;
- Failure of communication between the accused and counsel; or
- Any other genuine and legally explainable circumstance.
The explanation must be truthful and supported by documents wherever possible.
4. Give an Undertaking to Appear
The accused may express willingness to appear before the court and undertake to remain present on future dates whenever personal appearance is required.
Courts may take such undertakings into consideration while deciding the application.
5. Seek Bail Protection Where Necessary
Where there is a genuine apprehension of arrest pursuant to the NBW, the accused may need to seek appropriate bail relief depending upon the circumstances.
The appropriate remedy can differ from case to case. Therefore, the accused should not assume that filing a recall application alone will always protect against arrest.
6. Appear Before the Court
In many situations, the accused may need to appear before the court in connection with the application.
The lawyer can advise whether personal appearance is mandatory or whether exemption can be sought under the applicable law.
What Should Be Mentioned in the Warrant Recall Application?
A properly prepared application should generally contain:
- Details of the cheque bounce case;
- Case number;
- Name of the accused;
- Date on which the NBW was issued;
- Reason for absence;
- Explanation regarding previous appearances;
- Supporting documents, wherever available;
- Assurance of future appearance; and
- Prayer for recalling/cancelling the NBW.
The application should avoid unnecessary allegations and should focus on the actual reason for non-appearance and the accused’s willingness to cooperate with the proceedings.
False or exaggerated explanations may adversely affect the court’s assessment of the accused’s conduct.
Can the Accused Be Arrested After Issuance of an NBW?
Yes. An NBW is a serious court process and may be executed by the competent authorities in accordance with law.
Therefore, an accused should not simply ignore the warrant on the assumption that no arrest will take place.
If the accused learns that an NBW has been issued, immediate legal advice should be obtained.
Depending upon the circumstances, the lawyer may consider:
- Filing an application for recall/cancellation;
- Seeking bail;
- Seeking appropriate protection from arrest;
- Requesting exemption from personal appearance where legally permissible; or
- Approaching a higher court where appropriate.
The correct remedy depends upon the procedural stage and the orders already passed in the case.
Role of Bail and Personal Appearance
An important distinction should be understood between cancellation of the warrant and bail.
Cancellation or recall of the warrant concerns the court process issued to secure the accused’s presence.
Bail concerns the accused’s release from custody, where custody has occurred or is legally apprehended.
Therefore, where the NBW has already been issued, then the accused should obtain the case-specific legal advice regarding both warrant and bail consequences.
The court may also impose the conditions to ensure that the accused appears regularly and does not obstruct proceedings.
What If the Accused Cannot Appear Personally?
There can be circumstances where an accused is genuinely unable to attend court personally.
Depending upon the applicable procedural law and the facts of the case, the accused may seek exemption from personal appearance through an appropriate application.
Courts may consider factors such as:
- Illness;
- Age;
- Unavoidable circumstances;
- Distance from the court;
- Professional or other genuine difficulties; and
- Whether the accused is otherwise cooperating with the proceedings.
However, an exemption application should not be treated as a substitute for compliance with every court direction.
If the court has specifically directed personal appearance, the accused should comply unless the court grants appropriate exemption or modification.
Practical Steps After an NBW Is Issued
If an NBW has been issued in a cheque bounce case, the accused should consider the following practical steps:
- Do not ignore the warrant.
- Obtain the latest court order immediately.
- Check the complete order-sheet history.
- Consult a lawyer without unnecessary delay.
- Identify the exact reason for non-appearance.
- Collect documentary evidence supporting the explanation.
- File an appropriate recall/cancellation application.
- Seek bail or other protection where legally necessary.
- Comply with directions of the court.
- Attend future hearings regularly.
- Keep copies of all applications and court orders.
- Avoid making false statements before the court.
Early action can often prevent the matter from becoming more complicated.
How Lead India Can Help?
Lead India can assist individuals facing cheque bounce proceedings and NBW-related complications by:
- Providing legal guidance regarding the cheque bounce case;
- Explaining the implications of an NBW;
- Assisting in preparing an application for recall or cancellation of the warrant;
- Advising regarding bail and appropriate legal protection;
- Reviewing court orders and procedural developments;
- Assisting with representation before the appropriate court; and
- Providing guidance regarding further proceedings in the cheque bounce case.
The appropriate legal remedy depends upon the facts, procedural stage, and orders passed by the concerned court.
An NBW in a cheque bounce case is serious but does not mean conviction. The accused may seek recall or cancellation of the warrant by explaining the absence and assuring cooperation. Immediate legal action is essential. Depending on circumstances, the accused may also seek bail, exemption from personal appearance, or other protection. Compliance with all the future court directions can prevent any further complications.
One can talk to lawyer from Lead India for any kind of legal support. In India, free legal advice online can be obtained at Lead India. Along with receiving free legal advice online, one can also ask questions to the experts online free through Lead India.
FAQs
1. Can an NBW issued in a cheque bounce case be cancelled?
Yes. The accused can approach the concerned court with an appropriate application seeking recall or cancellation of the NBW. The court will consider the circumstances and conduct of the accused.
2. Does an NBW mean that I have been convicted?
No. An NBW is a process intended to secure the presence of the accused before the court. It does not itself amount to conviction in the cheque bounce case.
3. Can I avoid arrest after an NBW is issued?
It depends upon the facts and the applicable legal remedy. Promptly approaching the court for recall/cancellation and, where necessary, seeking appropriate bail or protection can be important.
4. What reason should I give for my absence?
The accused should provide the true and genuine reason for the absence. Where possible, supporting documents should be submitted. False explanations should be avoided.
5. Do I have to personally appear before the court?
Not necessarily in every situation. Depending upon the circumstances and the court’s directions, an exemption from personal appearance may be sought. However, where personal appearance is specifically directed, appropriate permission should be obtained from the court.
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