Accused Not Appearing in Section 138 Cases? What Senior Advocates Do | Advocate Playbook 062
EduLaw EditorialAdvocate PlaybookA practical courtroom playbook for handling repeated non-appearance of the accused in cheque-bounce complaints under Section 138 of the Negotiable Instruments Act.
Advocate Playbook 062 EduLaw Accused Not Appearing in 138 Cases? What senior advocates do: a stage-wise courtroom method to secure the accused’s presence, protect the record and keep a cheque-bounce complaint moving. The strategy is not “ask for an NBW.” Make service unquestionable. Record every default precisely. Seek proportionate process in stages. Convert eventual appearance into trial progress. The Court should see a pattern in the file before counsel asks it to draw a conclusion. Cheque Bounce Litigation NI Act, 1881 BNSS Practice Updated for 2026 Repeated non-appearance can turn a straightforward Section 138 complaint into years of procedural drift. Experienced advocates do not respond with anger or an automatic demand for the harshest warrant. They create a record that makes the next judicial step both necessary and defensible. Why non-appearance becomes a strategy problem Section 138 proceedings are designed for speed. Section 143 of the Negotiable Instruments Act provides for summary trial, while Section 144 creates a special mode for service of summons through speed post or approved courier. The Supreme Court has repeatedly emphasised expeditious disposal and effective service in cheque-dishonour litigation. Yet a complaint cannot move to plea, complainant evidence, cross-examination or final hearing if the accused never enters appearance. The complainant’s advocate therefore has two parallel responsibilities: first, to establish valid service; second, to show that later absence is deliberate rather than the product of a defective address, incomplete service or a genuine explanation. The senior advocate’s distinction A weak file says: “The accused is absent.” A strong file says: “The accused was served on this date, remained absent on these dates, was granted these opportunities, and the earlier process has failed.” The seven-stage courtroom method 01 Do not panic after the first absence The first default is a fact, not yet a pattern. Check the order sheet, service report, address and any exemption application. Courts ordinarily distinguish a genuine first default from persistent evasion. Example: The accused misses the first effective date because of hospitalisation and produces medical papers on the next date. An immediate prayer for a non-bailable warrant may appear disproportionate. 02 Make service impossible to casually dispute Before asking for coercive process, verify the address used in the complaint, legal notice, postal record and court process. Preserve speed-post tracking, acknowledgment, process-server reports, refusal endorsements and any electronic-service record permitted by applicable rules. Section 144 of the NI Act specifically facilitates service by speed post or approved courier. The Supreme Court’s 2025 directions in Sanjabij Tari v. Kishore S. Borcar stressed wider and more effective service in Section 138 matters. Example: The complainant knows that the drawer has shifted but continues using an obsolete address. A later warrant request may fail because valid service was never established. 03 Build a date-wise chronology Prepare a one-page attendance chronology identifying when summons were issued, when service was completed, each date of absence, whether exemption was sought, what opportunity was granted and what process was previously issued. Date Event What the record should show 05 January Summons served Mode, address and proof of delivery 02 February First absence Whether exemption or explanation was filed 01 March Fresh opportunity Clear warning and next date 22 March Repeated absence Failure despite valid service and opportunity 04 Seek coercive process in stages The usual strategy is progressive: summons, fresh or alternative service where necessary, bailable warrant, and then a non-bailable warrant only where the record justifies escalation. A warrant should be presented as a means to secure presence, not as punishment before trial. The BNSS retains the framework for processes compelling appearance, including summons, warrants, proclamation and attachment. Proclamation under Section 84 and attachment under Section 85 are exceptional later-stage measures and require a proper foundation. Example: After valid service and two unexplained defaults, a bailable warrant is issued. When it remains unexecuted and the report indicates evasion, counsel has a stronger basis for seeking the next lawful step. 05 Speak through the record, not emotion Weak submission “The accused is deliberately wasting the Court’s time and deserves strict action.” Stronger submission “The accused was served on 12 February, remained absent on three consecutive dates, filed no exemption and has not responded to the bailable process already issued.” The second submission allows the Court to act without first accepting counsel’s opinion about motive. 06 When the accused appears, shift from presence to progress Once the accused appears, ask the Court to record presence, deal with bail or bond formalities, obtain a firm undertaking regarding future appearance and fix the next procedural stage. Opposing every request mechanically can waste the hearing that should move the complaint forward. Example: Instead of spending the entire hearing opposing bail, complainant’s counsel requests fixed dates for plea, complainant evidence and cross-examination, along with a direction against unnecessary adjournments. 07 Keep every application complete A written request should identify the institution date, service details, dates of non-appearance, earlier orders, process already attempted, execution status and exact relief sought. Attach relevant orders and reports where local practice permits. Model oral submission “The accused stands duly served. The order sheets dated 5 March, 19 March and 2 April record repeated absence without exemption. A bailable warrant was thereafter issued but remains unexecuted as reflected in the execution report. An appropriate further process may therefore be issued to secure the accused’s presence and prevent further delay.” What senior advocates avoid Mistake Why it weakens the case Better practice Seeking an NBW on the first default May appear excessive without a pattern Verify service and record opportunity Ignoring defective service Later coercive orders rest on a weak foundation Correct the address and complete service Making only oral requests The chronology may not remain on file Use a short written application where needed Asking for “strict action” without particulars Emotion does not establish necessity Refer to dates, orders and reports Treating warrants as punishment Process is meant to secure appearance Seek the least coercive effective step Doing nothing after appearance The matter returns to routine adjournments Seek a structured trial schedule “Senior advocates do not chase the accused through angry submissions. They build a procedural record that makes the Court’s next step inevitable.” Advocate Playbook 062 A practical hearing checklist Before the matter is called When the matter is called After the order Keep the complaint, address proof, service report, postal tracking and previous orders ready. State the chronology in under one minute and identify the last process. Read the order immediately and ensure service, absence and next process are accurately recorded. Check for any exemption application or appearance through counsel. Ask only for the next proportionate step and a short date. Follow up on preparation, dispatch and execution of process. The legal framework at a glance Section 138, NI Act: creates the offence arising from cheque dishonour subject to fulfilment of the statutory requirements. Section 143, NI Act: provides for summary trial and reflects the expectation of speedy disposal. Section 144, NI Act: enables service by speed post or approved courier and recognises refusal-related consequences. BNSS, Chapter VI: governs processes to compel appearance, including summons, warrants, proclamation and attachment. Sections 84–85, BNSS: deal with proclamation and attachment where statutory conditions are satisfied. Practice caution Local criminal rules, High Court directions, electronic-service rules and individual court practice may affect the mode of service, filing format and sequence of process. Always verify the latest order sheet and local rules before moving an application. Final playbook When the accused does not appear, the advocate’s job is not merely to demand a warrant. The real work is to make service reliable, preserve a precise chronology, seek proportionate process and use eventual appearance to lock the case into a forward-moving schedule. A Section 138 complaint moves fastest when every hearing adds something useful to the record. That is the difference between repeatedly saying “the accused is absent” and demonstrating why the Court must now take the next lawful step. Official references Negotiable Instruments Act, 1881 — India Code Bharatiya Nagarik Suraksha Sanhita, 2023 — India Code In Re: Expeditious Trial of Cases Under Section 138 of NI Act — Supreme Court, 2021 Sanjabij Tari v. Kishore S. Borcar — Supreme Court, 2025 Meters and Instruments Pvt. Ltd. v. Kanchan Mehta — Supreme Court, 2017 Educational disclaimer: This article is intended for legal education and professional discussion. It is not a substitute for advice on a particular case. Procedural steps must be adapted to the order sheet, service material, applicable High Court rules and facts before the concerned court. EduLaw · Advocate Playbook 062 Strategy · Record · Results All rights reserved