Accused Evading Summons in Cheque Fraud Case – What You Can Do

One of my clients recently had a case which I am explaining below and if you are stuck in such similar situation, here is what to do.

Note: Due to attorney-client privilege, I cannot disclose complete case details or identify the actual parties involved. However, I am sharing the essential facts and legal approach so that if you find yourself in a similar situation, you can understand the available solutions and legal remedies.

Kavita Reddy, a small business owner based in Indore, had supplied goods worth a substantial amount to a trader operating in the Gomti Nagar area of Lucknow. Payment was made via post-dated cheques. When she deposited them in early February 2025, every single one bounced. She filed a criminal complaint promptly, and the court issued summons to the accused at all known addresses. Weeks passed. Then months. The accused simply refused to accept the summons — at his residence, at his place of business, everywhere. Every hearing date ended in postponement, and her previous advocate had no concrete plan beyond waiting.

Frustrated and financially strained, Kavita approached Advocate Sudhir Rao around mid-April 2025. The situation wasn't unusual at all. Summons evasion is a deliberate tactic many accused employ to drag proceedings indefinitely, and it works — until someone actually uses the procedural tools the law provides. What changed things here was a targeted legal strategy: an application was filed before the Magistrate seeking substituted service under Section 64 BNSS, requesting service by affixing the summons at the accused's last known address in the presence of a witness, alongside publication in a local Lucknow newspaper. Simultaneously, an application for issuance of bailable warrant was moved, given repeated non-appearance. Within two hearings, the Magistrate issued a bailable warrant, which the police served through the local station. The accused appeared before the court shortly thereafter. Proceedings resumed on track.

The shift came because the earlier approach lacked domain-specific knowledge of the procedural tools available precisely for this situation. Once those tools were applied correctly, the case moved forward meaningfully.

Advice in Such Cases

Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation to come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Apply for Substituted Service Immediately: Don't wait for five or six failed attempts. Once two or three returns of summons show the accused is evading, your advocate can file an application under Section 64 BNSS for substituted service — by affixture at the last known address or by publication in a daily newspaper circulating in that area. Courts generally accept this route once a pattern of evasion is established. Frankly, many complainants lose months simply because their advocate doesn't push for this early enough.

Push for a Warrant: If substituted service is also being ignored, the next step is applying for a bailable warrant and, if that too fails, a non-bailable warrant under Section 87 BNSS. Make this application promptly. Don't let the case idle while the accused sits comfortably at home.

Digital and Electronic Service: Courts increasingly permit service via email, WhatsApp, or other electronic means under Section 64 BNSS read with relevant High Court practice directions. This is particularly useful when a physical address is being deliberately avoided. Ask your advocate about this option early — it's quicker than most people expect.

Cases involving summons evasion in cheque fraud matters require advocates who regularly handle criminal cheque-related proceedings. Procedural nuances like timing of warrant applications, the correct affidavit formats for substituted service, and coordinating with the process server and local police — these are areas where domain-specific experience makes a real practical difference. Now, before you act, understand that choosing the wrong advocate at this stage can set you back by months.

Applicable Sections of Law

• Section 318 BNS: Cheating — applicable where fraudulent intent accompanies the dishonoured cheque or the underlying transaction.
• Section 316(2) BNS: Criminal breach of trust — relevant where the accused misappropriated funds or goods entrusted to him.
• Section 64 BNSS: Substituted service of summons — allows affixture at address or newspaper publication when ordinary service fails.
• Section 87 BNSS: Power of court to issue warrant in place of or in addition to summons when the accused fails to appear or evades service.
• Section 138, Negotiable Instruments Act, 1881: Dishonour of cheque for insufficiency of funds — primary statutory provision in cheque bounce matters, with specific procedural requirements including a statutory notice period.

Punishment and Penalties

• Section 318 BNS (Cheating): Imprisonment up to three years, or fine, or both. Where the value involved is significant, courts tend toward custodial sentences.
• Section 316(2) BNS (Criminal Breach of Trust): Imprisonment up to three years, or fine, or both; aggravated forms carry up to seven years.
• Section 138, Negotiable Instruments Act: Imprisonment up to two years, or fine up to twice the cheque amount, or both.
• Nature: Offences under Section 138 NI Act are cognizable, non-bailable, and compoundable with the court's permission. Offences under BNS sections are cognizable and may or may not be bailable depending on the severity alleged.

Jurisdiction — Where to File the Case

Get this wrong and you'll waste months. For offences under Section 138 of the Negotiable Instruments Act, 1881, the complaint lies before the Judicial Magistrate of First Class (JMFC) having territorial jurisdiction over the place where the cheque was presented for payment, as settled in Dashrath Rupsingh Rathod v. State of Maharashtra, 2014. For BNS offences like cheating or criminal breach of trust, jurisdiction lies where the offence was committed or where the accused ordinarily resides. Filing in the wrong court can result in dismissal or transfer, which wastes months. Choosing the correct jurisdictional court from the outset is a matter your advocate must assess carefully based on the specific facts.

What if Police Refuse to File FIR?

• Submit a written complaint to the Superintendent of Police (SP) of the district under Section 173(4) BNSS, requesting an investigation.
• If the SP does not act, file a private complaint before the Judicial Magistrate under Section 175(3) BNSS, which allows the court to take cognizance directly on the complainant's statement.
• The Magistrate can order an inquiry or direct the police to register an FIR under Section 175(3) BNSS, as affirmed in Lalita Kumari v. Government of UP, 2014.
• As a last resort, approach the High Court by filing a writ petition under Article 226 of the Constitution, directing the police to register the FIR.

Rights of the Accused

• Right Against Self-Incrimination: Under Article 20(3) of the Constitution, no accused can be compelled to be a witness against himself.
• Right to Legal Representation: Article 22 guarantees the right to consult and be defended by a legal practitioner of one's choice.
• Right to be Produced Before Magistrate: Any person arrested must be produced before the nearest Magistrate within 24 hours of arrest under Article 22(2) and Section 57 BNSS.
• Right to Know Grounds of Arrest: The accused must be informed of the grounds of arrest and has the right to a copy of the FIR.
• Right to Bail: Depending on the bailable or non-bailable nature of the offence, the accused has the right to apply for bail as per Sections 480 and 483 BNSS.

Bail Provisions

Offences under Section 138 of the Negotiable Instruments Act are non-bailable but compoundable. BNS Section 318 (cheating) is generally bailable unless the facts disclose aggravated elements. Once a warrant is executed and the accused is arrested, he can apply for regular bail under Section 483 BNSS before the Magistrate. If the accused apprehends arrest in anticipation, he can apply for anticipatory bail under Section 482 BNSS before the Sessions Court or High Court. And here's the thing — courts in cheque fraud matters often impose bail conditions such as deposit of the cheque amount or a portion thereof as a condition of bail, which your advocate can use strategically to ensure some financial security for the complainant during proceedings.

Quashing of FIR / Case

The accused may approach the High Court seeking quashing of the FIR or complaint under Section 528 BNSS, which preserves the High Court's inherent powers. Grounds typically argued include absence of any prima facie offence, that the complaint is an abuse of process, or that the parties have reached a settlement in a compoundable matter. In B.S. Joshi v. State of Haryana, 2003, the Supreme Court held that in cases where the offence is primarily between private parties and a genuine compromise has been reached, High Courts can quash proceedings in the interest of justice. Make no mistake — in cheque fraud matters with clear dishonesty, courts are generally reluctant to quash at an early stage.

If You Are the Victim

• Send a statutory demand notice under Section 138 NI Act within 30 days of receiving the cheque return memo — this is a mandatory prerequisite before filing a complaint.
• File the complaint within 30 days of the expiry of the 15-day notice period if the accused does not pay.
• Preserve all original cheques, bank return memos, and proof of the underlying transaction — these are foundational evidence.
• If summons are being evaded, immediately bring this to your advocate's attention and request an application for substituted service or warrant under Section 87 BNSS without delay.
• Avoid direct communication or negotiation with the accused without your advocate's knowledge — anything you say informally can be used against you or misrepresented.

Documents You Must Keep Ready

• Original dishonoured cheque(s) and bank return memo with reason for dishonour clearly stated
• Copy of the statutory demand notice sent under Section 138 NI Act and proof of delivery (speed post acknowledgement or courier receipt)
• Bank statements showing the cheque presentation and return
• Agreement, invoice, or contract forming the basis of the underlying transaction
• All communications with the accused — SMS, WhatsApp messages, emails
• Identity proof (Aadhaar card, PAN card) of the complainant
• Address proof of the accused from which summons were returned unserved
• Proof of service attempts — court process server reports or postal returns

What Evidence Is Required?

• Original cheque: Primary document — its physical condition, signature, and amount are examined directly by the court.
• Bank return memo: Establishes the dishonour and the specific reason (insufficient funds, account closed, etc.).
• Demand notice and acknowledgement: Proves the statutory notice was served within the prescribed period.
• Bank account statements: Corroborate the presentation of the cheque and the return.
• Transaction documents: Invoices, receipts, or agreements that establish the legally enforceable debt underlying the cheque.
• Electronic evidence: WhatsApp conversations or emails where the accused acknowledged the debt or promised payment — admissible under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023.
• Witness testimony: Any person present during the transaction or payment can be examined as a witness.

How the Police Behave in Such Cases

Cheque fraud complaints filed directly before a Magistrate (as most Section 138 NI Act cases are) don't always involve police at the initial stage. But when BNS offences like cheating are added, the local police are drawn in. And here's the thing — police often treat cheque-related disputes as "civil matters" and may show reluctance to register an FIR, sometimes pressuring the complainant to settle informally instead. Once a warrant is issued by the Magistrate, however, the local station is duty-bound to execute it. Coordinating with the process server and following up directly with the concerned police station is often necessary to ensure warrants are actually executed rather than left pending.

Timeline of Legal Process

• Week 1-4: Cheque dishonour → send demand notice → wait for 15-day response period.
• Week 5-8: File complaint before JMFC if no payment received within 15 days of notice.
• Month 2-3: Court takes cognizance and issues summons to accused.
• Month 3-6: Repeated summons attempts — if evaded, application for substituted service or warrant (Sections 64 and 87 BNSS).
• Month 6-9: Accused appears or is produced; framing of notice / charge begins.
• Month 9-18: Evidence stage — complainant's evidence, cross-examination, accused's defence evidence.
• Month 18-24: Final arguments and judgment.
• Post-judgment: Appeal before Sessions Court or High Court if either party is aggrieved — can add another 12-24 months.

How Long Will the Investigation Take?

For Section 138 NI Act complaints filed directly before a Magistrate, there is no police investigation phase in the traditional sense. The complainant bears the initial burden of proof. Where BNS offences are added and an FIR is registered

Facing a similar matter? Speak to a Delhi criminal defence lawyer — Advocate Sudhir Rao appears in bail, trial and appellate matters before the Delhi District Courts, the Delhi High Court and the Supreme Court of India.