2025 (1) TMI 1089 - HC - Indian Laws

Conviction upheld under Section 138 for dishonored cheque despite accused's absence during trial proceedings

The Bombay HC upheld conviction under Section 138 of the Negotiable Instruments Act where the accused remained absent during trial proceedings. The court ... Dishonour of Cheque - power of the trial Court to proceed with the trial for an offence punishable under Section 138 of the Negotiable Instruments Act in absence of the accused - when neither accused nor his advocate appeared during evidence recording stage, whether trial Court can a) proceed further, b) dispense statement under section 313 of the Criminal Procedure Code and c) convict the accused? HELD THAT:- It is very well true that this view does not fit into the traditional view of ‘mandatory recording of the statement and even giving the benefit to the accused about certain lacunaes in recording Section 313 statement’. Recently, the Hon’ble Supreme Court in case of P. MOHANRAJ & ORS. VERSUS M/S. SHAH BROTHERS ISPAT PVT. LTD. [2021 (3) TMI 94 - SUPREME COURT] has dealt with nature of cases under Section 138 being quasi-criminal. The Hon’ble Supreme Court observed “Section 138 proceeding can be said to be a “civil sheep” in a ‘criminal wolf’s’ clothing” - The issue involved in that case was whether the proceeding under Section 138 read with Section 141 of the Negotiable Instruments Act are covered by the moratorium provisions under Sections 14 of the Insolvency and Bankruptcy Code. That is why there was an occasion for the Hon’ble Supreme Court to consider the nature of proceeding under Chapter XVII of the Negotiable Instruments Act. The ingredients of Section 138, 141, 142, 143-A, 148 were considered. If the proceeding under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, there is reason to believe that one of attribute of criminal trial about mandatory recording of statement under Section 313 of the Criminal Procedure Code is not applicable. So in given set of facts narrated hereinabove, the accused cannot make complaint about causing prejudice if evidence is adduced in his absence and he cannot make complaint of non recording of the statement under Section 313 of the Criminal Procedure Code if they have remained absent without justification. In a given case and after ascertaining certain factors, the Magistrate is justified in proceeding further in absence of accused and even dispense his statement. It cannot be said that there is illegality in the findings recorded by the trial magistrate and confirmed by the Court of the Additional Sessions Judge. There is no merit in both these revisions applications. The order of conviction and the sentence passed by the Court of Metropolitan Magistrate for the offence punishable under Section 138 of the Negotiable Instruments Act is confirmed - Both the revision applications are dismissed. 1. ISSUES PRESENTED and CONSIDEREDThe core legal question addressed in this judgment is whether the trial court can proceed with a trial and convict an accused under Section 138 of the Negotiable Instruments Act in the absence of the accused and without recording their statement under Section 313 of the Criminal Procedure Code (CrPC). Specifically, it examines if the trial court can:Proceed with the trial when neither the accused nor their advocate is present during the evidence recording stage.Dispense with the statement under Section 313 of the CrPC.Convict the accused under these circumstances.2. ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and PrecedentsThe judgment considers several sections of the CrPC and the Negotiable Instruments Act. Key provisions include:Section 138 of the Negotiable Instruments Act, which deals with the dishonor of cheques.Section 313 of the CrPC, which mandates the court to question the accused to explain any circumstances appearing in the evidence against them.Section 273 of the CrPC, which requires evidence to be taken in the presence of the accused or their pleader.Provisions under the Negotiable Instruments Act that allow for summary trials and other procedural modifications aimed at expediting cases.Court's Interpretation and ReasoningThe court interprets the absence of the accused and the lack of a Section 313 statement in light of the procedural flexibility provided under the Negotiable Instruments Act. The court acknowledges that while traditional criminal trials require the presence of the accused and the recording of their statement, the quasi-criminal nature of Section 138 proceedings allows for deviations to ensure speedy justice.Key Evidence and FindingsThe judgment notes the continuous absence of the accused and their advocate during the trial and the failure to cross-examine the complainant. The trial court proceeded with the conviction based on the evidence presented by the complainant, which was unchallenged due to the absence of the accused.Application of Law to FactsThe court applies the legal principles by considering the accused's absence and their failure to rebut the presumption of dishonor under Section 138. The court finds that the trial magistrate was justified in proceeding with the trial and conviction in the absence of the accused, given the procedural allowances under the Negotiable Instruments Act.Treatment of Competing ArgumentsThe judgment addresses arguments regarding the necessity of recording a Section 313 statement. It contrasts traditional criminal procedure with the expedited processes under the Negotiable Instruments Act, emphasizing the quasi-criminal nature of Section 138 proceedings. The court also considers precedents where courts have allowed for procedural flexibility in similar cases.ConclusionsThe court concludes that the trial magistrate was justified in proceeding with the trial and convicting the accused in their absence and without recording a Section 313 statement. The judgment emphasizes the importance of ensuring that the trial is not unduly delayed by the accused's absence, aligning with the legislative intent of the Negotiable Instruments Act to provide swift justice.3. SIGNIFICANT HOLDINGSPreserve Verbatim Quotes of Crucial Legal ReasoningThe judgment includes significant observations such as: 'It is not the Complainant's duty to secure the presence of the accused in such a case, to record their 313 statement. If the accused are not bothered to remain present before the Court, the Complainant, who is already a victim should not be made to suffer for no fault of his.'Core Principles EstablishedThe quasi-criminal nature of Section 138 proceedings allows for procedural flexibility, including proceeding in the absence of the accused.The legislative intent behind the Negotiable Instruments Act is to ensure speedy resolution of cheque dishonor cases, which may justify deviations from traditional criminal procedure.Final Determinations on Each IssueThe trial court can proceed with the trial and convict the accused in their absence if they fail to appear without justification.The recording of a Section 313 statement can be dispensed with under specific circumstances, particularly in quasi-criminal proceedings under the Negotiable Instruments Act.OrderBoth revision applications are dismissed.The conviction and sentence passed by the trial court and confirmed by the appellate court are upheld.The amount deposited by the applicant is to be returned to the complainant.Interim stay on the execution of orders is vacated.