The Kerala High Court has reaffirmed that issuing a non-bailable warrant against an accused under Section 138 of the Negotiable Instruments Act without prior service of summons violates fundamental principles of natural justice. In a procedural safeguard, the Court permitted the accused to surrender within one week and seek recall of the warrant and bail, directing the Trial Court to decide such applications expeditiously.
Background & Facts
The Dispute
The petitioner, Abdul Salam Moulavi, is the first accused in Criminal Case No. 464/2017 before the Judicial First Class Magistrate-I, Aluva, for an alleged offence under Section 138 of the Negotiable Instruments Act. The complainant alleged issuance of a cheque for Rs. 5,00,000 which was dishonoured due to insufficient funds on 12.04.2017. A legal notice was issued on 28.05.2017, and the complaint was filed on 15.06.2017.
Key Facts
- The petitioner claims he never received any summons from the Trial Court at any stage of the proceedings.
- On 26.08.2023, the Trial Court transferred the case from the calendar list to the long-pending register, citing non-appearance of the accused.
- The petitioner became aware of the transfer and the issuance of a non-bailable warrant (NBW) only through third-party sources.
- No affidavit or record in the case file indicates service of summons to the petitioner.
- The petitioner has been residing at Mundatt Apartment, Payipra Junction, Ernakulam, and has not fled or evaded process.
Procedural History
- 12.04.2017: Cheque dishonoured by bank
- 28.05.2017: Legal notice sent under Section 138 NI Act
- 15.06.2017: Complaint filed before Judicial First Class Magistrate-I, Aluva (C.C. No. 464/2017)
- 26.08.2023: Trial Court transferred case to long-pending register, citing non-appearance; NBW issued without evidence of service
- 03.07.2026: Petitioner filed Crl.M.C. No. 5485/2026 before the Kerala High Court seeking relief from NBW
The Parties' Positions
For the Petitioner: The petitioner, through Advocate Nireesh Mathew, contended that the issuance of NBW without service of summons is a gross violation of natural justice and Section 205 of the CrPC, which permits appearance through counsel if summons are properly served. He emphasized that he has always been available and willing to appear, and that the Trial Court’s failure to record service renders the NBW illegal.
For the Respondent/State: The Public Prosecutor, Zubair Pulikkool, did not dispute the absence of service records but argued that the petitioner’s prolonged non-appearance justified the transfer and NBW. However, no evidence of attempted service was produced before the High Court.
Relief Sought
The petitioner sought quashing of the NBW, direction to recall the warrant, and permission to surrender before the Trial Court with an opportunity to apply for bail and recall of the NBW without immediate remand.
The Legal Issue
The central question was whether a non-bailable warrant can be issued under Section 138 of the NI Act without proof of service of summons, and whether such issuance violates the principle of natural justice and Section 205 of the CrPC.
Arguments Presented
For the Petitioner
The petitioner relied on Arnesh Kumar v. State of Bihar to argue that courts must not mechanically issue warrants without examining the necessity, especially in compoundable offences like those under Section 138. He cited K. Srinivas v. State of Andhra Pradesh to assert that service of summons is a mandatory precondition for invoking coercive measures. He further contended that Section 205 CrPC permits accused to appear through counsel if summoned, and failure to serve summons renders subsequent proceedings void ab initio.
For the Respondent/State
The State did not contest the absence of service records but argued that the petitioner’s long-standing non-appearance (over six years) justified the transfer and NBW. However, no affidavit, postal receipt, or court order documenting attempts at service was produced. The Public Prosecutor conceded that the record lacked evidence of service but maintained that the Trial Court acted in good faith.
The Court's Analysis
The Court observed that the issuance of a non-bailable warrant is a drastic step, especially in a compoundable offence under Section 138 of the NI Act, where the legislature intended a summary and non-punitive remedy. The Court emphasized that natural justice demands that no person shall be condemned unheard (audi alteram partem). The absence of any record of service of summons, despite the petitioner’s consistent residence and availability, renders the NBW legally unsustainable.
"The issuance of a non-bailable warrant without any evidence of service of summons is a violation of the basic principles of natural justice and cannot be countenanced by this Court."
The Court noted that Section 205 CrPC explicitly allows an accused to appear through counsel if summoned, and the Trial Court’s failure to even attempt service or record the same is a procedural lapse that cannot be remedied by subsequent coercive action. The Court further held that the transfer of the case to the long-pending register on the sole ground of non-appearance, without establishing that the accused was aware of the proceedings, is legally flawed.
The Court declined to express any opinion on the merits of the underlying complaint but stressed that procedural fairness must precede substantive adjudication.
The Verdict
The petitioner succeeded. The Court permitted him to surrender before the Trial Court within one week from the date of judgment (by 10.07.2026). The Trial Court is directed to consider and dispose of his applications to recall the NBW and for bail on the same day of surrender, expeditiously and in accordance with law. The petitioner must serve advance copies of the applications on the Public Prosecutor. No remand shall be ordered pending disposal of the applications.
What This Means For Similar Cases
Service of Summons Is Non-Negotiable
- Practitioners must insist on proof of service before any NBW is issued in Section 138 cases
- Absence of service record in the file renders subsequent coercive orders void
- Courts must record attempts at service, including postal receipts, electronic service logs, or witness affidavits
Bail Applications Must Be Heard Immediately
- When an accused surrenders after unlawful NBW, the Trial Court must hear bail applications on the same day
- Delay in hearing bail applications violates Article 21 and the spirit of Arnesh Kumar
- Remand pending bail hearing is impermissible unless the accused is a flight risk or tampering evidence - neither of which was alleged here
Procedural Lapses Cannot Justify Substantive Outcomes
- Transfer to long-pending register cannot substitute for due process
- Courts must not presume non-appearance; they must establish it through documented service
- This precedent applies equally to all compoundable offences under the NI Act, IPC, and other special laws where summons are mandatory
