NBW not executed by police in NI Act case

[V S]

If NBW issued on multiple occasions against accused is not executed at all by police, can I :
1. get a arrest warrant issued against the bailor?
2. get the concerned police officer in charge summoned, questioned in court and punished or penalised?
3. What is the best legal action I can take before availing proclaimation provision as it is time consuming and cumbersome?

[Dr. Ashok Dhamija]

I don’t understand what you mean by bailor. But, if it refers to the surety, i.e., the person who had stood as a surety and given a bail bond for the bail of the accused, then you can apply for forfeiture / cancellation of the bail bond executed by him under the provisions of the Cr.P.C.

The court can call the police officer concerned and question him if the NBW addressed to him has not been served despite several efforts and if the court is convinced that it is not being served deliberately by police. However, it is not always necessary that the NBW has not been served by police deliberately; sometimes, there may be genuine reasons, such as non-availability of the accused, his shifting to some new address which is not known, he having absconded, etc. Action may not be possible against the police officer if there is some genuine reason for the NBW being not served.

Since cheque bounce case is a private complaint case, as complainant, you should provide the court with the proper and latest address of the accused if the police is not able to locate him.

Thirdly, if the NBW is not getting served, you can try to get the accused declared as a “proclaimed offender” by following the steps detailed in the Cr.P.C. for this purpose, and for attachment of his property.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[V S]

Thanks for your quick reply. Sir, bail bond is already cancelled. That’s why NBW has been issued against the accused. Since the accused has been absconding, its very difficult on the complainant’s part to trace the whereabouts of the accused. Since there is criminality now attached to a check bounce case, is it not the Police’s responsibility / duty to look for the accused, arrest him and bring him to the court when a NBW is already issued by the court like police executes a NBW in any other criminal offence?? If a complainant has to do all the hardship to trace an absconding accused, what is the point of giving criminal color to NI Act?? Sir, please, clear the air of confusion.
Surity was the accused’s father. Can I at least get the surity summoned to the court and questioned?? But since the bail bond stands already cancelled now, I think, I cannot do that. Please, correct me. Despite the accused absconding, the court never issued a warrant or atleast a summon against the surity when the surity was duty bound to ensure presence of the accused in the court. The court rather directly issued a NBW against the accused.

[Dr. Ashok Dhamija]

Even though there is a clause for imprisonment in a cheque bounce case and it is an offence, it is tried by the private party concerned and NOT by the State. Regular IPC offences are tried by the State at its own expenses and investigation is conducted by police. In a cheque bounce case, that is not the situation. Here the prosecution is conducted by the private person himself and there is no FIR or investigation or charge sheet by police.

That said, once NBW is issued by court even in a cheque bounce, police has to comply with that. In most cases, police does that. But, as I said, it is not possible sometimes to execute the NBW due to various genuine reasons, though sometimes it may be due to involvement of police too. Even in regular offences like murder, sometimes NBW cannot be served if the accused absconds. If you have evidence that accused is available but police is deliberately avoiding to execute the NBW, you can collect such evidence (such as video recording of accused with location identification and date confirmation by including date/time in video) and show it to court.

In a private case, it is your responsibility as complainant to give correct / updated address of accused to the court. Police may assist on court’s orders to locate the accused, but it is your responsibility too as it is a private complaint case. And, if accused is ultimately untraceable, it is your case which may suffer.

Surety’s responsibility is generally up to the forfeiture of the bail bond. If he cannot ensure presence of accused in court, his bail bond may be forfeited.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[V S]

Sir thanks a lot for such a detailed and elucidated reply…much appreciated.

[V S]

For the first instance, the police had arrested the accused and brought her to the court. The police did so because the complainant had bribed it. Thereafter, the complainant could not afford to bribe further. Consequently, police has deliberately shown apathy to take any action. Sir, if police always comes up with a reason of untraceability and thus does not deliberately execute NBW, is Proclamation of the accused’s property the only option left with the complainant in a NI Act case??

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