138 of n.i act

Mumtaz (Querist) 07 July 2013 This query is : Resolved
My query is, A has taken the loan from B. and for security A given the cheque of C to B. A made the payment but did not return back the said cheque. Now B filed the case against C. C was 18 years 3 months at the time of giving the cheque. whereas B is 54 years. Now the issue is B filed the case U/s 138 of N. I. Act. C never appeared before the court as A who is his uncle assured him that he paid the debt. The court issued summon, Bailable warrant, NBW. but C never appeared. One more thing, the father of C received the summon and mentioned that C is out of town and never informed them. At the time of executing the NBW, the cousin brother of C made the report that C is working but we don't know where he is. Now the court issued 82 which is executed. thereafter court issued 83 Cr.P.C. 83 not executed as no property is in the name of C. thereafter, the court consign the file with liberty to revive the same when C found. Now what is the remedy for the accused C. May i file the anticipatory or recall the order of the court. C does not want to face the court as there is a strong apprehension that the MM will sent him JC for atleast 2 days. Now give me the solution.

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M.Sheik Mohammed Ali (Expert) 07 July 2013
you appear before the court with reason for non appearance memo and recall the NBW

Advocate M.Bhadra (Expert) 07 July 2013
"C" should surrender to the Court,it is bailable offence and defend the case then actual fact would be come out.No need for anticipatory bail.

Madras High Court
S.Kannan vs State Rep. By on 21 February, 2011
DATED : 21.02.2011

CORAM

THE HONOURABLE MR. JUSTICE S.NAGAMUTHU

Crl.O.P.No.2714 of 2011

S.Kannan ... Petitioner

Vs.

1.State Rep. by

The Inspector of Police,

Ponneri, Thiruvallur District.

2.R.V.Steels and Powder Private Limited,

Rep. By its Manager Mr.Srinivasan,

Panjetty and Post, Ponneri Taluk,

Thiruvallur District. ... Respondents

coming to the judgement of this Court in R.Sarathkumar's case cited supra, the learned Judge, has in more than one place, stated that the petition for anticipatory bail is not maintainable in a case falling under Section 138 of the Negotiable Instruments Act because the offence is bailable.