Cheque Bounce Case: How to Serve Summons When the Accused Is Evading

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.

TL;DR: When a cheque bounces and the accused evades summons, the court can order substituted service and eventually issue a bailable warrant if he doesn't appear. The case can proceed ex-parte, and the court has powers to compel attendance. You can also pursue simultaneous remedies under RERA for the underlying property transaction.

One of my clients recently had a bitter experience. He had booked a residential plot in a new development near Nagpur from a partnership firm called Radhey Infrastructure. The deal was for around ₹34 lakhs. After months of delays and broken promises, the client demanded his money back. A partner of the firm — let's call him Rajesh Agrawal — gave him a signed Memorandum of Understanding and three post-dated cheques as a refund guarantee.

Every single cheque bounced. Dishonoured.

The client initially tried pursuing the matter on his own. He sent legal notices under Section 138 of the Negotiable Instruments Act. Rajesh accepted the first two notices but evaded the third one, which returned with the remark "no such person at this address." Worse, Rajesh had already shut down the firm's office and was nowhere to be found. The local police station in the area — Gomti Nagar — called him in once, but he simply shook hands with the Sub-Inspector and left. No action. The SI even gave a verbal "guarantee" of refund — which meant nothing. The client later found out Rajesh had 8 other active court cases against him and was already launching another new project.

That's when the client approached the Chamber of Advocate Sudhir Rao. The police weren't cooperating. The accused was playing hide-and-seek. But the Negotiable Instruments Act has teeth — and the office knew exactly how to use them. Advocate Sudhir Rao and his office advised filing a criminal complaint under Section 138 read with Section 141 of the NI Act, and simultaneously pursuing the RERA complaint. The specialised domain experience in handling such cheque bounce and property fraud cases was crucial — the office secured an order that allowed substituted service, and the court issued a bailable warrant when the accused failed to appear. The case is now proceeding ex-parte, and the client's chances of recovery are significantly better.

Key Facts of the Case

• The client paid approximately ₹34 lakhs to Radhey Infrastructure for a residential plot near Nagpur.
• Partner Rajesh Agrawal signed an MOU and issued three post-dated cheques as a refund guarantee.
• All three cheques were dishonoured upon presentation.
• Two legal notices were accepted; the third returned undelivered — "no such person."
• The accused closed his office, evaded all further notices, and had 8 other active court cases against him.
• Police refused to take effective action despite the client filing a complaint.
• The court ordered substituted service via email, WhatsApp, and affixation at last known address.
• A bailable warrant was issued when the accused failed to appear — the case is now ex-parte.

The Direct Legal Answer

How do I serve the summons if the accused is evading?

The court has ample powers here. If personal service fails after two or more attempts, the court can order substituted service under Order 5 Rule 20 of the CPC read with Section 94 of the BNSS (for criminal matters). This means you can serve the summons via email, WhatsApp, registered post at the last known address, affixation at that address, or even newspaper publication. The court will typically allow any combination of these methods. In your complaint, simply file an application explaining the failed attempts and seek permission for substituted service. The court almost always grants it.

Will the court bring him to hearing even if he hides?

Yes. Since a cheque bounce case under Section 138 NI Act is a criminal offence, the court can issue a bailable warrant if the accused fails to appear after valid service. If he still doesn't show up, the court can issue a non-bailable warrant. The accused can then be arrested and produced before the court. That's powerful leverage. The court does not simply let the matter die because the accused is evading.

What about getting my money back?

This is the tough part. Even if you win the case and the court convicts the accused, the order is for compensation — not a magic wand to recover money. You may need to file execution proceedings to attach his assets or bank accounts. But the criminal pressure often forces the accused to settle. And in this case, with 8 other cases against him and a new project launching, the pressure is real. The RERA route also gives you leverage — RERA can cancel his registration and impose penalties.

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.

Act fast. Delay gives the accused time to hide assets or start new projects under different names. File your case in the correct jurisdiction — usually where the cheque was presented or where the drawee bank is located. And don't rely on police promises. Verbal guarantees from the local station mean little. The court is your real forum.

This kind of case — cheque bounce combined with property fraud and an evasive accused — requires domain-specific experience. General practitioners often miss the procedural nuances around substituted service, compounding of offences, and simultaneous civil/criminal remedies. An advocate who regularly handles NI Act matters will know how to push the case quickly and strategically.

Applicable Sections of Law

• Section 138, Negotiable Instruments Act, 1881 — The core cheque bounce provision. It makes dishonour of a cheque for insufficiency of funds or exceeding arrangement a criminal offence.
• Section 141, Negotiable Instruments Act, 1881 — Extends liability to partners of a firm and directors of a company for offences committed by the firm.
• Section 94, Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — Deals with summons and modes of service, including substituted service when personal service fails.
• Order 5 Rule 20, Code of Civil Procedure, 1908 — Specifically governs substituted service in civil proceedings, often applied analogously in criminal cases.

Punishment and Penalties

Under Section 138 NI Act, the punishment is imprisonment for up to two years, or a fine which may extend to twice the cheque amount, or both. The offence is non-cognizable — meaning police cannot arrest without a warrant from the magistrate. It is bailable — the accused is entitled to bail as a matter of right. The offence is compoundable — meaning the parties can settle the matter and the case can be withdrawn with the court's permission. That's actually good for you: many accused prefer to settle to avoid a criminal record.

Jurisdiction — Where to File the Case

For a cheque bounce case, jurisdiction lies with the magistrate court where:
1) The cheque was presented for payment, or
2) The drawee bank (the bank on which the cheque is drawn) is located, or
3) The payee's bank is located.
The Supreme Court has clarified in several judgments that the complainant can choose among these options. In practice, most people file where their own bank branch is located. For the RERA complaint, jurisdiction is with the RERA authority of the state where the property is located — in this case, the Maharashtra RERA for the Nagpur project.

What if Police Refuse to File FIR?

In a cheque bounce case, police typically cannot file an FIR because the offence is non-cognizable. However, if there is an element of cheating (Section 318 BNS) or fraud, you can push for an FIR. Here's what to do:

• Submit a written complaint to the Station House Officer (SHO) and obtain an acknowledgement.
• If no action, approach the Superintendent of Police under Section 173(4) BNSS with a representation.
• Alternatively, file a private criminal complaint before the magistrate under Section 175(3) BNSS — this bypasses the police entirely.
• As a last resort, file a writ petition in the High Court under Article 226 of the Constitution.

Rights of the Accused

Even an accused evading summons has rights. The court must ensure service is proper before issuing any warrant. Key rights include:

• Right to remain silent / against self-incrimination (Article 20(3) of the Constitution).
• Right to legal representation (Article 22).
• Right to be produced before a magistrate within 24 hours of arrest.
• Right to a copy of the complaint and all documents relied upon by the complainant.
• Right to bail under Section 138 NI Act since the offence is bailable.

Bail Provisions

Since a cheque bounce offence is bailable, the accused is entitled to bail as a matter of right. He cannot be kept in custody for non-appearance alone — a bailable warrant merely compels his presence, not indefinite detention. If anticipatory bail is needed, it would be under Section 482 BNSS (similar to old Section 438 CrPC), though it's rarely sought in NI Act cases because the accused can simply appear and get regular bail. The strategy is usually to get the accused to appear and then negotiate settlement under court supervision.

Quashing of FIR / Case

The accused can file a petition under Section 528 BNSS (inherent powers of the High Court) to quash the complaint. Grounds include no prima facie case, the cheque was not for a legally enforceable debt, or the matter has been settled between the parties. However, quashing is rarely granted at the initial stage in NI Act cases — the court typically allows the trial to proceed. The best strategy for the complainant is to ensure the complaint is well-drafted with all supporting documents to resist any quashing attempt.

If You Are the Victim

• File the complaint under Section 138 NI Act without delay — the limitation period is 30 days from the date of the legal notice's expiry.
• Keep every document: the bounced cheques, bank return memos, legal notices, postal acknowledgements, and the MOU.
• Inform the court about the accused's other pending cases — it shows a pattern.
• Simultaneously pursue your RERA complaint — it can force the developer to refund or face cancellation of registration.
• Do not rely on police guarantees. The court is your forum. Push for substituted service early.

Documents You Must Keep Ready

• Original dishonoured cheques (not photocopies — the originals are evidence).
• Bank return memos showing the reason for dishonour.
• Copy of the MOU / agreement with the firm.
• Legal notices sent to the accused, with proof of dispatch and delivery attempts.
• Postal receipts, speed post acknowledgements, or courier records.
• Proof of payment (bank statements, receipts, UPI records).
• Copy of the police complaint and any response received.
• Details of the accused's other cases (court case numbers, if available).

What Evidence Is Required?

• The original cheque and bank return memo — these are primary evidence of the dishonour.
• The legal notice sent to the accused and proof of its receipt or attempted service.
• The MOU or agreement proving the underlying transaction and the debt.
• Bank statements showing the cheque presentation and return.
• Any communication between you and the accused — emails, WhatsApp chats, call recordings (if legally obtained).
• If the accused claimed "no such person," evidence of his identity and address (Aadhaar, voter ID, GST registration of the firm).
• Certified copies of the other court cases against the accused (to show his conduct).

How Courts Typically Approach Such Cases

Magistrates in cheque bounce cases are generally complainant-friendly. The standard of proof is 'preponderance of probabilities' — lower than 'beyond reasonable doubt' in regular criminal cases. Once the complainant proves the cheque, the dishonour, and the legal notice, a presumption arises under Section 139 NI Act that the cheque was issued for a legally enforceable debt. The accused then bears the burden to rebut this presumption. Courts also take a dim view of accused persons who evade service — they are more willing to issue warrants and proceed ex-parte.

Timeline of Legal Process

• Step 1 — Notice: Send legal notice within 30 days of dishonour. Wait 15 days for payment. (1-2 months)
• Step 2 — Complaint: File complaint before magistrate within 30 days of notice expiry. Court issues summons. (1-2 months)
• Step 3 — Service: Personal service attempts. If evading, substituted service application. (2-4 months)
• Step 4 — Appearance: If accused doesn't appear, bailable warrant, then non-bailable warrant. (2-6 months)
• Step 5 — Trial: Evidence of complainant, cross-examination, accused's defence. (6-12 months)
• Step 6 — Judgment: Conviction or acquittal. Appeal lies to Sessions Court. (1-2 years total from filing)
• Execution: If convicted but no payment, file execution proceedings to attach assets. (6-12 months additional)

How Long Will the Investigation Take?

There is no police investigation in a standard cheque bounce case — it's a complaint case filed directly before the magistrate. The court takes cognizance and proceeds to trial. No investigation is required unless there is an element of cheating or fraud that warrants police involvement. The 'investigation' here is the court's process of issuing summons and securing the accused's presence.

Understanding the Costs

The total cost of a matter like this varies significantly from one case to the next — it depends on the complexity of the dispute, the forum involved, the number of hearings, and the specific facts of your situation. There is no single fixed figure that applies to everyone.

A professional advocate can give you an accurate estimate only after reviewing all your facts and documents in a consultation.

Can the Matter Be Settled Out of Court?

Yes, and this is actually common in cheque bounce cases. Since the offence under Section 138 NI Act is compoundable, the parties can reach a settlement at any stage — even after conviction, during the appeal. The accused typically pays the cheque amount plus some compensation, and the complainant withdraws the case. The court then records the compounding and acquits the accused. Settlement can also be reached through mediation or Lok Adalat, which is quicker and less adversarial. For the property transaction, a separate civil settlement or RERA consent terms can be executed.

Common Mistakes People Make

• Delay in sending the legal notice or filing the complaint — the limitation period is strict and cannot be extended.
• Not keeping the original bounced cheque safe — lost cheques can destroy the case.
• Relying on police promises or verbal guarantees — the accused walks away, and you've lost precious time.
• Engaging an advocate who does not regularly handle NI Act or property fraud cases — the procedural nuances around substituted service, warrant strategy, and simultaneous RERA remedies are often missed by general practitioners, leading to delays or weak orders.
• Not filing the RERA complaint simultaneously — it's a powerful parallel remedy that can pressure the developer independently.
• Posting case details on social media or discussing strategy publicly — this can be used against you in court.

FAQs People Normally Have

Can I file a cheque bounce case if the cheque was for a property deal and not a loan?

Yes. Section 138 NI Act covers any cheque issued for the discharge of a legally enforceable debt or liability. A refund guarantee cheque from a property transaction qualifies.

What if the accused claims the MOU is forged?

The burden of proof shifts to the accused once you produce the MOU and the cheque. The presumption under Section 139 NI Act is in your favour. Let him prove forgery — it's not easy.

How long will it take to get my money back?

Realistically, 2-4 years if the matter goes to full trial and execution. However, if the accused settles under court pressure, it can be faster — often within 6-12 months of filing.

Can I also sue the partnership firm or only the partner?

Under Section 141 NI Act, the firm and every partner who was in charge of the business at the time of the offence can be made liable. Include all partners and the firm itself in the complaint.

What is substituted service and how does it work?

It's a court order allowing you to serve summons through alternative means — email, WhatsApp, affixation at last known address, or newspaper publication. Once done, the court treats the accused as served and can proceed ex-parte.

This article is general legal information, not legal advice. Consult a qualified advocate about your specific situation.

Advocate Sudhir Rao, Supreme Court of India

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.