Bailable Offence Under Section 138 of NI Act
Violation of Sec. 138 Negotiable Instruments Act is a bailable offense as it is punishable with imprisonment, which may extend to two years.
When the “bailable warrants” are executed, the persons arrested shall be released by the police officer who executes the warrant after furnishing sureties as per the terms of the warrant.
Any Court issuing a warrant for the arrest of any person may in its discretion direct by endorsement on the warrant that, if such person executes a bond with sufficient sureties for his attendance before the Court at a specified time and thereafter until otherwise directed by the Court, the officer to whom the warrant is directed shall take such security and shall release such person from custody.
Under Sec.87, Crl.P.C, warrants are issued “in lieu of, or in addition to summons”. Therefore, before issuing a warrant, the Court (Magistrate) shall satisfy that the summons have already been served on the respondent; and also the Court must have reasons to believe that the petitioner has “absconded or will not obey the summons”;
The purpose for which the warrant is issued in a case under Sec. 138 of the Negotiable Instruments Act is not to see the respondent behind the bars, but only to see that the respondent appears before the Court to answer the charges leveled against him.
Therefore, a non-bailable warrant shall not be issued in Sec. 138 of the Negotiable Instruments Act cases unless it is absolutely necessary and unless the Magistrate is satisfied that the respondent will not obey the bailable warrant or had absconded
Further, as per Sec.70, Crl.P.C. a warrant cannot be issued unless the Court is satisfied that the circumstances necessitate the issue of a warrant of arrest.
It is also noteworthy to note that as per Sec. 143 Negotiable Instruments Act, notwithstanding anything contained in the Code of Criminal Procedure, the offenses are triable summarily in accordance with the provisions of Chapter 21 under ?Secs. 262 to 265, Crl.P.C. Yet, (even though it is a summary trial) sentence can be imposed up to one year, and more than Rs.5,000 may be imposed as a fine. (Please Note: Summary trials deal with cases that consist of?minor offenses of simple nature?as opposed to serious cases which are tried in summons/warrant trials.)
Jagadhri-Yamunanagar(Haryana based Criminal,(Criminologist)Lawyer Matrimonial(Kapoor & kapoor Associates)28+ years experience
5 个月Nothing extraordinary
Start up entrepreneur working on development of a unique Agri Storage System for storage of Foodgrains and Seeds
1 年Hello Mr Dutta, I have been impressed with your article on bailable offence under section 138 of NI Act. Summons have been served. But the accused is not receiving the BWs, we have issued BWs upto 3-4 times. But the judges are reluctant to convert it into NBW. Can you help me with any judgements or regulationd to counter the same so that tge BWs are converted into NBWs and I don't have to keep requesting for reissue of BWs and thus reduce the non productive time and avoid wasting time. Due to poor attendance by judges in courts we suffer a lot, Yesterday for a 10 minute job to exhibit the documents, a lady judge conveyed to me she has no time & postponed it by 2 weeks. On one hand our honorable PM has been pressing hard & asking the judiciary fo work upto 9 PM so that a large number of cases can be cleared. During the coming months many changes are expected in the NI Act so that the 36 lakh cases of cheque bouncing can be disposed of at the earliest. And here we have the judiciary which has no accountability