Cheque bounce cases under Section 138 of the Negotiable Instruments Act, 1881 run for many dates. The accused, often a businessperson or a company director in another city, is expected to attend each one. Missing a date without leave can lead to a warrant. The answer is an exemption application: an application asking the court to excuse the accused's personal appearance for one date, or for the rest of the case, while their advocate appears.
This guide gives a ready exemption application format in a 138 NI Act case in English, for one date and for the whole trial, plus a Hindi version (हाज़िरी माफ़ी प्रार्थना पत्र), the sections to cite after 1 July 2024, and what courts look for before granting it. Whether you searched for an exemption application format in 138 NI Act cases, an exemption application format for accused persons generally, or an exemption application format in court, the formats below work before any district court or Metropolitan Magistrate.
The sections: CrPC to BNSS
| What it covers | CrPC (old) | BNSS (new) |
|---|---|---|
| Magistrate may dispense with the accused's personal attendance and let an advocate appear | Section 205 | Section 228 |
| Inquiry or trial may proceed in the accused's absence, for reasons recorded, if the accused is represented | Section 317 | Section 355 |
| Bond or bail bond for appearance | Section 88 | Section 91 |
| Substance of accusation stated to the accused (the "notice" in a summons case) | Section 251 | Section 274 |
| Examination of the accused (statement) | Section 313 | Section 351 |
| Non-appearance of the complainant | Section 256 | Section 279 |
Proceedings started after 1 July 2024 follow the BNSS. Many 138 complaints filed earlier are still running under the CrPC because of the savings clause in Section 531 BNSS. Cite the code your case is actually proceeding under, and if in doubt, cite both: "Section 228 BNSS (Section 205 CrPC)". Section 355 BNSS adds one practical point: attendance through audio-video electronic means counts as personal attendance. Ask for video appearance where the court allows it.
What the courts have said about exemption in 138 cases
- Read the power liberally. In Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. (2001), the Supreme Court held that the power to dispense with personal attendance in Section 138 cases should be used to avoid needless harassment, especially where the accused lives far away. The accused can appear through an advocate, on suitable conditions.
- But there is no blanket right. In Mahesh Kumar Kejriwal v. Bhanuj Jindal (2022), the Supreme Court held that an accused cannot claim a blanket exemption from appearance in a Section 138 case. The Magistrate decides on the facts, and can require appearance on particular dates.
- The Magistrate needs reasons. Under Section 355 BNSS, the court records its reasons for dispensing with attendance, and the accused must be represented by an advocate.
In practice: one-date exemptions with a genuine reason are routine. Long-term exemptions are granted more readily where the accused lives in another city, is elderly or unwell, or is a company officer, and gives an undertaking that removes any prejudice to the complainant.
One date or the whole case?
| One-date exemption | Long-term exemption | |
|---|---|---|
| When | A specific hearing date | For the rest of the trial, or until the court directs |
| Common grounds | Illness, a medical procedure, travel, an exam, another court's date, a family emergency | Distance, age, health, business or official duties, a director of a company accused |
| Provision | Section 228 / 355 BNSS (courts also act under their general power to excuse attendance on a date) | Section 228 BNSS at the summons stage; Section 355 BNSS during trial |
| Proof | Medical certificate, ticket, cause list of the other court | Address proof, medical records, the undertaking |
| Undertaking | Usually not needed | Yes (see below) |
Format 1: Exemption application for one date (138 NI Act case)
To get a Word or PDF copy, paste the format into Word, fill in the brackets, and save it as .docx or PDF.
IN THE COURT OF [METROPOLITAN MAGISTRATE / JUDICIAL MAGISTRATE FIRST
CLASS], [COURT NO. __], [DISTRICT]
Complaint Case No. ______ of 20__
[Name of complainant] ... Complainant
VERSUS
[Name of accused] ... Accused
Under Section 138 of the Negotiable Instruments Act, 1881
Next date of hearing: [date]
APPLICATION ON BEHALF OF THE ACCUSED FOR EXEMPTION FROM PERSONAL
APPEARANCE FOR TODAY, i.e. [DATE], UNDER SECTION [228 / 355] OF THE
BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 [SECTION 205 / 317 CrPC]
MOST RESPECTFULLY SHOWETH:
1. That the above case is pending before this Hon'ble Court and is
fixed for [stage, e.g. complainant's evidence] today.
2. That the accused is unable to appear before this Hon'ble Court
today because [state the reason clearly, e.g. the accused is
suffering from high fever and has been advised bed rest for __ days
by Dr. __; a copy of the medical certificate is annexed as
Annexure A].
3. That the absence of the accused is neither intentional nor
deliberate, and the accused undertakes to appear on the next date
of hearing or whenever directed by this Hon'ble Court.
4. That the accused is duly represented by the undersigned counsel,
and no prejudice will be caused to the complainant if the accused
is exempted from personal appearance for today.
PRAYER
It is therefore most respectfully prayed that this Hon'ble Court may be
pleased to exempt the accused from personal appearance for today, i.e.
[date], in the interest of justice.
ACCUSED
Through
[Place] [Advocate name]
[Date] [Enrolment No.], Advocate
Drafting these every week? Juniorlawyer can produce exemption, adjournment and other routine applications for a 138 case from the case details, for you to check and file. See the drafting features →
Format 2: Long-term exemption for the whole trial (Section 228 / 355 BNSS)
IN THE COURT OF [__], [DISTRICT]
Complaint Case No. ______ of 20__
[Complainant] v. [Accused]
Under Section 138 of the Negotiable Instruments Act, 1881
APPLICATION ON BEHALF OF THE ACCUSED UNDER SECTION [228 / 355] OF THE
BHARATIYA NAGARIK SURAKSHA SANHITA, 2023 [SECTION 205 / 317 CrPC] FOR
DISPENSING WITH THE PERSONAL APPEARANCE OF THE ACCUSED DURING THE
PENDENCY OF THE TRIAL
MOST RESPECTFULLY SHOWETH:
1. That the accused has appeared before this Hon'ble Court [and has
furnished a bond / bail bond on __], and has been regularly
attending the proceedings.
2. That the accused resides at [city], about [__] km from this Hon'ble
Court, and [is __ years old / suffers from __ / is a director of the
accused company responsible for its day-to-day business], so that
attending every date causes serious hardship and loss.
3. That the case is a summons case triable summarily under Section 143
of the Negotiable Instruments Act, and the personal presence of the
accused on every date is not necessary for its progress.
4. That the accused undertakes that:
(a) the accused will not dispute his / her identity as the accused
in this case;
(b) an advocate will appear on behalf of the accused on every date
of hearing;
(c) the accused will not object to evidence being recorded in his /
her absence; and
(d) the accused will appear in person whenever this Hon'ble Court
directs, including for [the statement under Section 351 BNSS /
the judgment], [and is willing to appear through audio-video
electronic means where permitted].
5. That no prejudice will be caused to the complainant if the
application is allowed. The Supreme Court in Bhaskar Industries Ltd.
v. Bhiwani Denim and Apparels Ltd. (2001) recognised the power to
dispense with personal appearance in Section 138 cases to avoid
needless harassment.
PRAYER
It is therefore most respectfully prayed that this Hon'ble Court may be
pleased to dispense with the personal appearance of the accused during
the pendency of the trial, permit the accused to be represented by
counsel, and pass any other order deemed fit in the interest of justice.
ACCUSED
Through
[Place] [Advocate name]
[Date] [Enrolment No.], Advocate
File it with the accused's affidavit supporting the facts and the undertaking, and attach proof: address, medical records, or the company's authorisation.
Format 3: हाज़िरी माफ़ी प्रार्थना पत्र (Exemption Application in Hindi)
न्यायालय श्रीमान [न्यायिक मजिस्ट्रेट प्रथम श्रेणी], [जिला]
परिवाद संख्या ______ वर्ष 20__
[परिवादी का नाम] ... परिवादी
बनाम
[अभियुक्त का नाम] ... अभियुक्त
अंतर्गत धारा 138, परक्राम्य लिखत अधिनियम, 1881
विषय: अभियुक्त की आज दिनांक [__] की व्यक्तिगत उपस्थिति से छूट
(हाज़िरी माफ़ी) हेतु प्रार्थना पत्र, अंतर्गत धारा [228 / 355]
भारतीय नागरिक सुरक्षा संहिता, 2023
महोदय,
1. यह कि उपरोक्त वाद श्रीमान के न्यायालय में विचाराधीन है तथा आज
[प्रक्रम, जैसे परिवादी साक्ष्य] हेतु नियत है।
2. यह कि अभियुक्त आज [कारण, जैसे अस्वस्थता / बाहर होने] के कारण
न्यायालय में उपस्थित होने में असमर्थ है। चिकित्सा प्रमाण पत्र /
संबंधित दस्तावेज़ संलग्न है।
3. यह कि अभियुक्त की अनुपस्थिति जानबूझकर नहीं है। अभियुक्त अगली
तिथि पर अथवा न्यायालय के निर्देश पर उपस्थित होने का वचन देता है।
4. यह कि अभियुक्त की ओर से अधिवक्ता उपस्थित हैं, और छूट दिए जाने
से परिवादी को कोई हानि नहीं होगी।
अतः श्रीमान से निवेदन है कि न्यायहित में अभियुक्त को आज दिनांक [__]
की व्यक्तिगत उपस्थिति से छूट प्रदान करने की कृपा करें।
अभियुक्त
द्वारा
स्थान: [__] [अधिवक्ता का नाम]
दिनांक: [__] अधिवक्ता
Dates when courts usually want the accused in person
Even with an exemption, expect the court to require the accused, in person or by video where permitted, on some dates:
- First appearance, when the accused furnishes the bond or bail bond under Section 91 BNSS (Section 88 CrPC).
- Notice of accusation under Section 274 BNSS (Section 251 CrPC). Some courts allow this through counsel on an exemption with an undertaking.
- Statement of the accused under Section 351 BNSS (Section 313 CrPC). The court may let the accused file a written statement instead.
- Judgment, especially if a conviction is possible.
- Settlement or compounding, where the court wants to record both parties' consent.
What happens if the accused is absent without exemption
The court can issue a bailable or non-bailable warrant, and the bond furnished for appearance can be forfeited (Section 491 BNSS). If a warrant has been issued, apply promptly to cancel it, with the reason for absence and an undertaking to appear. It's far easier to file an exemption application before the date than to undo a warrant after it.
For complainants: the complainant's absence matters too. Under Section 279 BNSS (Section 256 CrPC), the Magistrate may acquit the accused if the complainant doesn't appear. The BNSS now requires the court to give the complainant thirty days' time to be present first, and lets the court dispense with the complainant's attendance if an advocate appears.
Common mistakes
- Filing on the morning of the hearing with no proof. Attach the medical certificate, ticket or other court's cause list.
- Asking for a long-term exemption without an undertaking. The undertaking is what removes the prejudice to the complainant.
- Citing only the CrPC in a case instituted after 1 July 2024. Cite Section 228 / 355 BNSS (and the CrPC section in brackets if the case began earlier).
- Treating an exemption as permanent. In 138 cases there is no blanket right. Check each order for dates on which personal appearance is still required.
- Ignoring video appearance. Section 355 BNSS treats video attendance as personal attendance. Ask for it where the court allows it.
Also see our guide to the cheque bounce case under Section 138 NI Act and the cheque bounce legal notice format.