Cheque bounce NI-Sec 138 and date postponed?
i have a case under Metropolitian Magistrate court for Cheque Bounce under Section 138 NI. i have completed the process of recall and the court has asked me to appear on a particular date, to give a surety of Rs.5000 and to get a guarantor for the same. However I will not be able to attend court on the designated day and would like it to get the date postponed. What can I do about it?
When the case pertains to Section 138 of Negotiable Instruments Act (bouncing of cheque), and the complainant’s lawyer files a Bhatta (Process Form) along with the address of the accused, the court will then issue a summon to the accused for appearance in the court. If the accused is unable to attend the court proceedings on the prescribed date, the court will issue a bailable warrant on the request of the complainant. If the accused still does not appear, the court may then issue a non-bailable warrant of arrest against him. In other words, if you are unable to attend the proceedings on the prescribed date the complainant can request the court to file a bailable warrant of arrest against you. Issuing of summons or warrants has not been discussed in the Negotiable Instruments Act but in Criminal Procedure Code (as these are procedural matters). The procedure of issuing warrants in such circumstances has been explained in detail in the case Regupathi v. Govindan and is also explained in Section 87 and 71 of CrPC. In this case the court said that a non-bailable warrant in case of bouncing of cheque is issued in exceptional circumstances and the Magistrate should first start by filing a bailable warrant. Section 87(B) clearly states that the warrant is issued if a “reasonable excuse” is not offered to the court instead of a valid summon. The standard of “reasonable excuse” under criminal law is strict and also depends on the subjective intent of the concerned judge. According to the facts of your case, what you should do is to communicate to the court (through your lawyer) your reasons for not attending the court proceedings and try persuading the court for another date.
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