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Pawan Kumar   09 November 2021

Cheque bounce complaint for out of state Party

Respected Experts

One of my friend has lend some amt as help to one of his relative and cheque got bounced. My friend is living in Distt Bharatpur (Rajasthan)and his relative in Punjab.
my friend has called him many times but he is not ready to pay. Cheque validity is still available...Nowif he will file the complaint after notice of cheque bounce
1) What will happen if accused will not appear in the court
2) What will be the practical procedure to arrest the accused if he will not appear in the court


 4 Replies

Arpit Tumbaria (Advocate at Uttarakhand High Court.)     09 November 2021

You first need to send him a notice U/S 138 of Negotiable instrument act through any advoacte of your jurisdiction if he annot reply or answer you then you have the right ti file a complaint case u/s 138 of NI act. If the person not appearing in court then court will issue summons and warrants respectively to bring her before the court and if court find him guilty then you will get your money back through court order or court will send him to imprisonment for a term which may extend to 2 years.

or reference read this- 

section 138 in The Negotiable Instruments Act, 1881

138 Dishonour of cheque for insufficiency, etc., of funds in the account. —Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for 19 [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless—

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Pawan Kumar   09 November 2021

Mr Arpit Tumbaria --Thanks for your reply ...But my main worry is , Accused is from out of state and I am sure that he will not appear in the court after filing the complaint and after notice from the court...Definately as per procedure he will will declared as P.o..after then how the accused will be arrested what is the procedure of that

Aryan Raj   15 December 2021

In response to your query, 

In your case because the defendant is in a different state therefore the best option will be to sue him in the state where he resides, probably in the court nearest to him. But otherwise you can also sue him in your own state and if he doesn't appear in the court even after multiple summons the court will take severe action against him because this can be considered as a criminal offence. 

Failure to appear: This is a misdemeanor or a very minor crime and the definition varies from state to state.

Contempt of court: This is the crime of failing to obey a court order and also is a misdemeanor or non-felony crime. 

All these could result in a bench warrant, license suspension, jail sentence along with fine and more so there is no way one can keep running away from court orders.


Aryan Raj 

Kawmini Liyanage   15 December 2021


To briefly answer your query, the applicable law is The Negotiable Instruments Act of 1881. As mentioned above by Advocate Arpit Tumbaria; section 138 takes presiding in this regard. Since he has clearly mentioned a precise idea about its application can be taken. In fact, it is clear that the situation deems to be fulfilling all three components laid down in Section 138, hence can institute an action against the person who has defaulted. 

  1. In the event, if the accused did not present at the Court by himself or by way of representation through an attorney, the case will be heard in ex parte manner.  Where the accused/ defendant of the case will not get the chance to defend himself in the case, and will only hear the plaintiff's claim at the court. Eventhough the case will be ex parte, the responsibility to prove the case is on the plaintiff. and mostly such ex parte matters grant decision in favor of the party who represented (plaintiff) if the cause is justifiable.  
  2. In the event where the court decides the defendant is at fault according to section 138 court can either order for imprisonment of the person or to pay the default amount or an appropriate amount, or else can be ordered to pay the amount decided by the court and an imprisonment. 


Kawmini Liyanage

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