Negotiable instruments
Can a Court Issue an NBW Mechanically in a Section 138 Cheque Bounce Case?
No. A court cannot issue a non-bailable warrant in a Section 138 case as a routine first step. In a ruling reported on 4 October 2026, the Andhra Pradesh High Court recalled an NBW issued against a 70-year-old accused because the order gave no specific reasons, and the notice had gone to an address where he did not live. The warrant is meant to secure presence, not to punish. Section 138 of the Negotiable Instruments Act, 1881 remains a bailable offence.
Key takeaways
- An NBW may be issued in a cheque-bounce prosecution, but only after the court records why summons or a bailable warrant will not secure appearance.
- Section 90 of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires those reasons in writing. An order that is silent on reasons cannot be sustained.
- Service at the wrong address, returned “unclaimed”, is not by itself proof that the accused has absconded.
- The High Court recalled the warrant and directed the petitioner to appear before the trial court within two weeks.
- The ruling is binding in Andhra Pradesh. In Telangana it is persuasive. The Supreme Court warrant guidelines remain binding in both States.
What the Andhra Pradesh High Court decided
Justice Maheswara Rao Kuncheam of the Andhra Pradesh High Court heard a criminal petition under Section 528 of the BNSS. The petition challenged an NBW issued in proceedings under Section 138 of the Negotiable Instruments Act. The public reports do not give the criminal-petition number or the parties’ names. This note follows the reports of LiveLaw (4 October 2026) and LatestLaws (5 October 2026), and does not invent a citation.
The petitioner was about 70 and a permanent resident of Karnataka. The complaint cause title, and the cause title before the High Court, showed a Karnataka address. The notice had gone to an Andhra Pradesh address where he did not reside. The postal cover was endorsed “unclaimed”. The trial court issued a non-bailable warrant at the first instance, without recording specific reasons, and, on the case put to the High Court, without first issuing summons or a bailable warrant.
The complainant’s side argued that the accused was protracting the case and that the Magistrate had statutory power to issue the warrant. The High Court accepted the power, and rejected the manner of its use.
“It is apparent from the postal cover that the notice was addressed to Andhra Pradesh address and the said endorsement stands as ‘unclaimed’, whereas the address shown in the cause title in the complaint filed by the respondent No.2 as well as the cause title before this Court clearly indicate the address of the petitioner as Karnataka. Further, impugned order does not disclose any specific reasons for issuing Non-Bailable Warrants against the petitioner/accused at the first instance.”
The Court recalled the NBW and disposed of the petition. It directed the petitioner to appear before the trial court within two weeks of receiving the order, and to continue appearing unless personal appearance was dispensed with by due process of law.
Why an NBW in a Section 138 case is not the first process
Section 138 creates a criminal offence when a cheque issued for a legally enforceable debt or liability is dishonoured, and the statutory notice and complaint conditions are met. The offence is bailable and compoundable, and is tried by a Magistrate. A bailable offence can still attract a warrant if the accused does not appear. The warrant does not change the offence into a non-bailable one.
The process ladder is in the BNSS, which replaced the Code of Criminal Procedure for cases governed by it from 1 July 2024.
| Provision | What it controls | Why it mattered here |
|---|---|---|
| Section 90, BNSS | Warrant in lieu of, or in addition to, summons, only after reasons are recorded in writing. | The trial court’s order disclosed no specific reasons for an NBW at the first instance. |
| Section 90(a) | Warrant if the court sees reason to believe the person has absconded or will not obey the summons. | An “unclaimed” cover at an address the accused did not use is not, by itself, that belief. |
| Section 90(b) | Warrant if the person fails to appear and the summons is proved to have been duly served in time, with no reasonable excuse. | Due service was not shown. The cause title itself showed a Karnataka address. |
| Section 91, BNSS | Power to take a bond or bail bond for appearance. | The court can secure the next date without treating the warrant as punishment. |
| Section 528, BNSS | High Court’s inherent power to prevent abuse of process. | This was the petition used to recall the illegal warrant. It is not a substitute for appearance in every case. |
Section 90 is the successor of Section 87 of the Code of Criminal Procedure, 1973. The text still requires a written reason. Clause (a) can apply even before the date fixed for appearance, but only if the court sees reason to believe that the person has absconded or will not obey the summons. Clause (b) needs proved due service and absence without a reasonable excuse. Neither clause is a default setting on the day cognizance is taken.
The order must show the reason
The High Court put the safeguard in plain terms. Mere conferment of power does not permit its use in a routine or mechanical manner. The court must look at the facts of that case and satisfy itself that coercive process is necessary. The order must say why. Recording of reasons is the check against arbitrary use of judicial discretion. An NBW issued without disclosing those reasons cannot be sustained.
“A Non-Bailable Warrant (NBW) issued by a Court is mainly to ensure that the accused appears before it. It is not meant to punish the accused.”
Supreme Court rules the High Court applied
The case analysis records that the Bench relied on Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1. In that judgment the Supreme Court said warrants, bailable or non-bailable, should not be issued without proper scrutiny, because the consequences are serious. Where summons would do, summons should be issued. If the accused appears to be avoiding summons, the next step is ordinarily a bailable warrant. A non-bailable warrant is for the stage when the court is satisfied that the accused is intentionally avoiding the proceeding.
The High Court also used the settled formulation that execution of a non-bailable warrant directly curtails liberty, so the warrant cannot be issued mechanically. That formulation is the Supreme Court’s in Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791. The court there required satisfaction, on the facts, that the warrant is warranted, and laid down practical directions on issue, cancellation, and prompt communication of cancellation to the police.
These two Supreme Court judgments bind every Magistrate, including courts trying Section 138 complaints in Hyderabad, Medchal, Ranga Reddy, and the rest of Telangana. The Andhra Pradesh ruling is an application of that law to a cheque-bounce warrant. It does not create a new defence to the complaint itself.
What this ruling does not decide
- It does not quash the Section 138 complaint. Recall of process and quashing of the case are different prayers.
- It does not say an NBW is never legal in a cheque-bounce case. Repeated absence after due service, or a recorded belief that the accused will not obey summons, can still justify a warrant.
- It does not dispense with appearance. The petitioner was told to appear within two weeks.
- It does not decide the debt, the cheque, or the statutory notice. Those remain for trial.
What an accused should do if an NBW is issued
Do not wait for the police to execute the warrant, and do not treat a High Court petition as the only route. In most files the first application is before the Magistrate who issued the process.
- Collect the order, the complaint cause title, the postal cover and endorsement, and proof of the correct address: Aadhaar, bank KYC, or the address on the cheque papers.
- File an application to recall or set aside the NBW, stating the service defect and the absence of reasons. Attach the papers. Ask for a short date.
- Appear on that date unless the court has already dispensed with personal presence. Appearance is the ordinary condition for recall.
- On appearance, seek bail. Section 138 is bailable. The court ordinarily considers a bond and surety under the BNSS. Conditions are case-specific.
- If a proclamation under Sections 84 and 85 of the BNSS is about to follow, place the service objection on record before that stage. A proclamation has separate consequences.
- Use Section 528 BNSS in the High Court when the order is illegal on its face, not as a way to avoid the trial court after due service.
A practical note on the two-week direction in this case: it ran from receipt of the High Court order, and it required continued appearance unless the trial court dispensed with it. Missing that window can put the accused back into coercive process.
Documents that usually decide a recall application
- Certified copy of the NBW order, or the order sheet if the warrant is only a one-line direction.
- Complaint, statutory notice, and postal track report, including the “unclaimed”, “addressee left”, or “insufficient address” endorsement.
- Proof that the address used was not the accused’s address at the relevant time.
- Age or medical papers, if they explain non-appearance. Age alone did not decide this case. The missing reasons and the wrong address did.
- Vakalat, identity proof, and a proposed bail bond if appearance is planned the same day.
Common mistakes
- Assuming that an NBW means the offence is non-bailable, and staying away for that reason.
- Sending only a lawyer to the Magistrate without a specific order dispensing with personal presence.
- Challenging the warrant in the High Court without first showing the service record.
- Asking the High Court to quash the complaint when the only defect is process.
- Ignoring a proclamation after the NBW. The two are not the same order.
What this means for a Telangana cheque-bounce court
A Magistrate in Medchal, Cyberabad, or the City Criminal Courts at Hyderabad is not bound by an Andhra Pradesh High Court order. The same Magistrate is bound by Sections 90 and 91 of the BNSS and by Inder Mohan Goswami and Raghuvansh Dewanchand Bhasin. The reasoning travels: an NBW at the first instance, with no reason recorded, and with service at an address the complaint itself does not consistently use, is open to recall.
For the steps used in Telangana files, see how an NBW is recalled in a Section 138 case in Telangana. For the complaint, notice, and jurisdiction map, see the note on a Section 138 NI Act prosecution in Hyderabad.
Frequently asked questions
Can a court issue an NBW in a Section 138 case?
Yes. The power exists. Section 90 of the BNSS allows a warrant in lieu of or in addition to summons, after reasons are recorded, if the court believes the person has absconded or will not obey the summons, or if duly served summons is disobeyed without a reasonable excuse. The Andhra Pradesh High Court held that the power cannot be used mechanically.
Does an NBW make Section 138 a non-bailable offence?
No. The offence under Section 138 remains bailable. The warrant is a mode of securing attendance. Once the accused appears, bail is ordinarily considered on bond and surety. Conditions depend on the file.
What if the summons was sent to the wrong address?
Put the postal cover, the endorsement, and the correct address before the court. In this case the cover was endorsed “unclaimed” at an Andhra Pradesh address, while the cause title showed Karnataka. That fact, with the absence of reasons, led to recall. It is not a universal rule that every “unclaimed” cover invalidates a warrant.
Can the High Court recall the NBW without the accused appearing?
Sometimes, on a petition under Section 528 of the BNSS, where the order is illegal. In this case the High Court still directed appearance before the trial court within two weeks. Personal presence remains the general rule for recall before the Magistrate.
Will the police arrest the accused the same day?
Not always. Execution depends on transmission of the warrant and police action. Do not plan on delay. A pending recall application is not a stay unless the court says so.
Can the accused seek exemption from personal appearance?
Yes, by a separate application, usually after appearance or on medical grounds the court accepts. Exemption is discretionary. This High Court order expressly kept the duty to appear unless the trial court dispensed with it.
Is this ruling binding on Telangana Magistrates?
No. It is persuasive. Supreme Court law on warrants is binding. A Telangana order that issues an NBW with no reasons, at the first instance, is open to the same objection.
Does recall of the NBW end the cheque-bounce case?
No. The complaint continues. The accused must answer the summons, the notice, and the presumption under Sections 118 and 139 of the Negotiable Instruments Act at trial, unless a separate quashing ground exists.
How SN Law Chambers can help
SN Law Chambers advises accused persons and complainants in Section 138 prosecutions before Magistrates in Medchal, Hyderabad, and other Telangana courts. If a non-bailable warrant has been issued, a consultation can cover the order, the service record, a recall application, bail on appearance, and whether a High Court petition under Section 528 of the BNSS is actually needed.
Contact: contact@snlawchambers.in · +91 88969 66663 · Plot No. 33, Survey No. 874, Gandimaisamma Road, Medchal Check Post, Medchal, Telangana 501401. This note is general information, not advice on a particular file.
Sources and legal authorities
- Andhra Pradesh High Court, Justice Maheswara Rao Kuncheam, criminal petition under Section 528 BNSS in a Section 138 NI Act prosecution; NBW recalled. Party names and petition number were not published in the reports reviewed on 5 October 2026. Reports: LiveLaw, 4 October 2026; LatestLaws, 5 October 2026.
- Negotiable Instruments Act, 1881, Sections 138, 118, 139 and 142.
- Bharatiya Nagarik Suraksha Sanhita, 2023, Sections 90, 91 and 528. Proclamation: Sections 84 and 85.
- Inder Mohan Goswami v. State of Uttaranchal, (2007) 12 SCC 1: warrants need scrutiny; NBW is not the first process where summons or a bailable warrant can secure appearance.
- Raghuvansh Dewanchand Bhasin v. State of Maharashtra, (2012) 9 SCC 791: an NBW curtails liberty and cannot be issued mechanically; cancellation must be communicated.
This article is published by SN Law Chambers for general information. It is not legal advice and does not create an advocate-client relationship. Procedure and relief depend on the order, the service record, and the court. Verify the judgment text before citing it in a petition. The Andhra Pradesh ruling is not, by itself, a precedent binding on Telangana courts.