Question: Can the Metropolitan Magistrate (MM) court issue Non-bailable Warrant (NBW) in cases of cheque bouncing under Section 138 Negotiable Instruments Act.
Answer: The simple answer is yes. Wherever it is necessary to ensure / compel the appearance of the accused in a cheque bounce case under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate has the power under law to issue a non-bailable warrant.
The offence under Section 138 of the N.I. Act is punishable with a maximum term of 2 years’ imprisonment. Therefore, it is a summons case within the meaning of the Criminal Procedure Code. However, it is noteworthy that Section 87 of the Criminal Procedure Code empowers a Magistrate to issue a warrant for the arrest of a person even in a case in which it is empowered to issue summons for the appearance of any person:
“87. Issue of warrant in lieu of, or in addition to, summons.— A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest—
(a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.”
Therefore, if the Magistrate is of the opinion that the appearance of the accused in a cheque bounce cannot be ensured otherwise, after recording its reasons in writing, he can issue a warrant for the arrest of the accused. And, such warrant can be a bailable warrant or a non-bailable warrant, as per the requirements. Generally, initially a bailable warrant is issued, but if it fails to ensure the appearance of the accused in the court, the court may issue a non-bailable warrant (NBW) for his arrest. There is no prohibition in law in this regard. The legal power to issue NBW is with the Magistrate who has taken cognizance in a case of cheque bounce, but whether to exercise such power in a specific case would depend on the facts and circumstances of the case.
In fact, in practice, there are several cases in which the Magistrates have issued NBW against accused persons in cheque dishonour cases.