How to Handle Cheque Bounce Cases?

Cheque bounce cases are dealt with under section 138 Negotiable Instrument Act, 1881(hereinafter NI Act). Under section 138 of NI Act, cheque has to be presented to the bank within 3 months from the date mentioned in the cheque. After receiving notice from the bank regarding return of cheque as unpaid, within 30 days a notice in writing demanding payment of money should be sent to the drawer. The notice should be drafted by an advocate mentioning all the details with the claim of only that much amount which is due. Notice served acts as a warning to the drawer that if the amount was not paid, legal proceeding against him might get started. After receiving notice, if the drawer does not make payment of the due amount within 15 days, then from the 16th day cause of action for cheque bounce arises for which the drawer can be punished for imprisonment up to 2 years or a fine which may extend to Twice the amount of cheque or with both.

After filing the case in court under section 138 of NI Act, if the accused does not appear or has changed his address then it is the complainant’s responsibility to find out the address of the accused. If the complainant was unable to find out, then he can apply to court for an issue of summons under Order 5 of the Code of Civil Procedure (hereinafter cpc). After the service  of summons also, if the accused does not appear, then the court can issue a warrant under section 70 of the Code of Criminal Procedure, 1973 (hereinafter Crpc). If the accused does not appear, then the court can declare the accused as proclaimed offender under section 82(4) of crpc. The Court may issue a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

The Proclamation should be read out in public in a well-known area in the city where the accused usually lives. It must be attached to a central section of the home or building where such a person typically dwells or to a prominent location in such a township or hamlet. A copy of the same shall be attached to the principal part of the Court. The Court can also additionally order that a record of the proclamation be broadcasted in a publication circulating in the person’s habitual residence. A written statement by the Court declaring that the declaration was lawfully issued on a particular day according to Section 80, subsection (1) will be regarded as conclusive proof that they issued a proclamation and that the requirements of this section were satisfied.

If any individual is declared as a “proclaimed Offender,” any citizen of India can make an arrest of the proclaimed offender. The proclaimed offender’s passport is revoked, and leaving the country is forbidden. If the accused were working for the government during the period of the unlawful pronouncement, they would be removed if they weren’t, they would be permanently prohibited from working for the government at any level, even if they had just been a declared criminal for a single day.. Even the accused would not be entitled to anticipatory bail under section 438 of crpc. After issuing such a proclamation, the Court can order for attachment of property of the accused under section 83 of crpc.

The Delhi High Court in 2021 has issued guidelines on proclaimed offenders that there should be specific procedures for the early arrest of proclaimed offenders. The procedure of sec 82 and 83 should not be followed habitually.  The state shall take all necessary measures to prosecute and seize a person’s property after declaring them as proclaimed offender and commence legal procedures under Section 174A of the once they have been classified as a criminal, the Indian Penal Code. The Supreme Court in Sanjay Bhandari v. The State of NCT, held that  a proclamation can only be made under Section 82 (1) of the Criminal Procedure Code against someone who has been served with a court order and has  gone into hiding, rendering the order unenforceable. Other than Section 82 (4), which only applies to those accused with IPC violations, there is no provision for designating someone as a declared criminal. The offence described in Section 82 (4) is serious, and it protects the prosecution of such crimes. In cheque bounce cases where the accused has been absconded, section 82(4) comes into play. In such cases along with the  proceedings of section 138 NI Act, one more proceeding of section 82(4) commences.