Recall of Judgment in NI Act Section 138 Case
What you need to know
A Section 138 summons under the Negotiable Instruments Act, 1881 is issued by a Magistrate when a cheque dishonour complaint is filed against you. If an ex-parte judgment was passed (i.e., you were absent and the court decided without hearing you), you have the right to file a 'Recall Application' requesting the court to set aside that judgment and restore your case for a fresh hearing. Under the Supreme Court's landmark ruling in Meters and Instruments Pvt. Ltd. v. Kanchan Mehta (2017) and the CrPC provisions on ex-parte proceedings, courts can recall such judgments on showing sufficient cause for absence. Time is critical — delays weaken your recall petition significantly.
Your rights
Right to be heard before any criminal conviction — no ex-parte judgment should stand without opportunity to defend
Right to file a Recall/Review Application if judgment was passed in your absence under Sec 256/317 CrPC
Right to challenge sufficiency of service of summons if you never received the original court notice
Right to compound (settle) the cheque bounce case with the complainant at any stage, including after judgment
What you should do now
Action firstVerify the judgment and your case details immediately
- Check the full case status and order on eCourts (https://ecourts.gov.in) using your name or case number
- Obtain a certified copy of the ex-parte judgment from the court's record room — this is essential for the recall petition
- Note the exact date of judgment; delay beyond 30 days makes recall harder (though no strict bar exists)
Engage a criminal/NI Act advocate and file Recall Application
- File a Recall/Restoration Application before the same Magistrate court explaining the reason for non-appearance (illness, lack of notice, etc.) with supporting documents (medical certificate, travel proof, affidavit of non-service, etc.)
- Simultaneously apply for suspension of sentence or stay of conviction if a warrant or fine has already been issued, to prevent immediate adverse action
If Recall is rejected — file Revision Petition
- If the Magistrate refuses to recall, file a Criminal Revision Petition before the Sessions Court under Sec 397–401 CrPC (or Sec 438–439 BNSS)
- Grounds: denial of natural justice, non-service of summons, or procedural illegality in passing the ex-parte order
Consider compounding / settlement as a parallel track
- Section 138 cases are compoundable — negotiate with the complainant to repay the cheque amount plus agreed compensation
- Once settlement is reached, file a joint compounding application; court will acquit you, making the recall moot
Acts applicable
Negotiable Instruments Act, 1881
centralSection 138 — dishonour of cheque for insufficiency of funds
Code of Criminal Procedure, 1973
centralSection 256/362/401 — recall/revision of ex-parte order
Bharatiya Nagarik Suraksha Sanhita, 2023
centralSection 302/439 — revision jurisdiction (applicable from 1 Jul 2024)