Check service first, but there is no fixed escalation sequence in every case. Section 90 BNSS permits a warrant on recorded grounds including absconding or anticipated disobedience, or failure to appear despite timely service without reasonable excuse. Each coercive step has its own statutory conditions. What happens at the hearings once the accused does turn up is in our answer on the cheque bounce hearing. This answer is about the accused who does not come.
Has the summons actually been served?
Under the Bharatiya Nagarik Suraksha Sanhita, 2023 a summons is served personally where practicable, by a police officer or an officer of the court, and Section 64 now requires the police station or the court registry to keep a register of the address, email address and phone number of the person to be summoned. Section 63 allows a summons to issue in encrypted or other electronic form bearing the image of the court's seal or a digital signature, and Section 70(3) says a summons served through electronic communication under Sections 64 to 71 is considered duly served, with an attested copy kept as proof. Section 65 lets a company be served through its director, manager, secretary or other officer. On top of the Sanhita, Section 144 of the Negotiable Instruments Act lets the Magistrate direct that a copy of the summons be sent by speed post or by a courier approved by the Court of Session to the place where the accused resides or works.
The Supreme Court laid down how Magistrates should run these cases in Indian Bank Association v. Union of India, decided on 21 April 2014. Its directions include that summons must be properly addressed and sent by post as well as to the email address obtained from the complainant, that a short date be fixed for appearance, that the court may take the help of the police or a nearby court to serve the accused, and that if the summons comes back unserved immediate follow up action be taken. So file the accused's email address and phone number with the complaint, and if the first summons returns unserved, file a memo the same week asking for service by the other modes rather than waiting for the next date.
What happens after service is proved and he still does not come?
Then the coercive process begins, and each step has its own section.
| Stage | Provision | What it does |
|---|---|---|
| Warrant of arrest | Section 72 BNSS | Issued in writing under the court's seal and remains in force until executed or cancelled |
| Bailable endorsement | Section 73 BNSS | The court may direct on the warrant that the accused be released on executing a bail bond with sureties, which is what practitioners call a bailable warrant |
| Proclamation | Section 84 BNSS (old Section 82 CrPC) | Where the court believes he has absconded or is concealing himself so the warrant cannot be executed, a written proclamation requires him to appear at a place and time at least thirty days from publication of the proclamation, read publicly, affixed at his house and the court house, and optionally published in a newspaper |
| Attachment of property | Section 85 BNSS (old Section 83 CrPC) | Movable or immovable property may be attached after the proclamation, or at the same time where he is about to dispose of or remove it |
| Offence of non-appearance | Section 209 BNS | Failing to appear as required by the proclamation is itself punishable with imprisonment up to three years, fine, or community service |
Note the limit built into Section 84(4). A court may pronounce someone a proclaimed offender only where the offence is punishable with imprisonment of ten years or more, life, or death. Section 138 carries a maximum of two years. So in a cheque case the escalation ends at proclamation and attachment. The label proclaimed offender, and the seven year punishment that Section 209 attaches to it, do not arise.
Can the trial go on without him?
Only in the narrow ways the Sanhita permits. Section 355 lets the court dispense with the accused's attendance and proceed, but only where he is represented by an advocate and the court records reasons, which is designed for the accused who wants exemption rather than the one who has vanished. Section 356, the new provision for trial in the absence of an absconder, applies to a person declared a proclaimed offender, requires two consecutive warrants at least thirty days apart, newspaper publication and ninety days from framing of charge before the trial starts. Because a Section 138 accused cannot be declared a proclaimed offender, that route is not available in your case, whatever you may have read about trials in absentia.
What is available is Section 335 BNSS. Where it is proved that the accused has absconded and there is no immediate prospect of arresting him, the court may examine the prosecution witnesses in his absence and record their depositions, which can be used against him on his arrest if the witness has died, cannot be found or cannot be produced without unreasonable delay or expense. Your own evidence is in any event on affidavit under Section 145(1) of the Negotiable Instruments Act, and the bank's memo carries the presumption of dishonour under Section 146. Ask for the affidavit to be taken on record and the bank witness, if any, to be examined under Section 335, so that the case is ready the day he is brought in.
What should I file to keep the case moving?
- A memo of service with the postal acknowledgement, the tracking print, or the attested copy of the electronic service under Section 70(3)
- An application for a warrant under Section 72, asking that it not be endorsed under Section 73 if a bailable warrant has already been ignored
- An affidavit for proclamation under Section 84 stating the attempts made and why you believe he is evading, with a prayer for attachment under Section 85 of identified property
- An application under Section 335 to record the evidence of witnesses who may not be available later
- A request to fix the case on short dates, relying on the 2014 directions and the day to day hearing rule in Section 143(2) of the Negotiable Instruments Act
- Your Section 143A application for interim compensation, ready to move the moment he pleads not guilty
Where these cases actually stall is not at the law but at the file. The complaint carries an old address, the process fee is unpaid, nobody files the email address the 2014 directions require, and six months pass in fresh summons. Under Section 227 BNSS no summons issues until the list of prosecution witnesses is filed and the summons must go with a copy of the complaint, so get the paperwork right at filing. Then treat every unserved return as a deadline for your next application, not as the court's problem. An accused who is running from a cheque case usually has assets he cares about more than he cares about the case, and Section 85 is what makes him call his lawyer. Interim compensation, once he appears and pleads, is covered in our answer on interim compensation while the case runs.