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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.M. MODAK, J.
Navneet Singh Gogia and Another – Appellants
Versus
State of Maharashtra and Another – Respondents
I.A. No. 1696 of 2023
Decided On : 23-01-2025
(A) Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code, 1973 - Section 313 - Conviction in absence of accused - Trial Court convicted accused under Section 138 despite their absence during evidence recording - Appellate Court upheld conviction emphasizing absence of accused and failure to rebut presumption - Court ruled that trial can proceed in absence of accused if justified by circumstances. (Paras 1, 4, 47)
(B) Principle of Natural Justice - Right to be heard - The principle mandates opportunity for the accused to explain circumstances against them, but can be waived if the accused persistently absents themselves. (Paras 17, 47)
Facts of the case:
The accused issued cheques for Rs. 1 Crore which were dishonoured, leading to prosecution under Section 138. They failed to appear for trial, leading to conviction.
Findings of Court:
The trial and appellate courts found no merit in the accused's claims of procedural violations, confirming the conviction.
Issues: Whether the trial court could convict in absence of the accused and dispense with Section 313 statement.
Ratio Decidendi: The court held that the trial can proceed in absence of the accused if justified, emphasizing the quasi-criminal nature of Section 138 proceedings.
Result: Revision applications dismissed, conviction upheld.
JUDGMENT :
S.M. MODAK, J.
1. The only issue argued before me is about 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. That is to say, ‘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’?
Background
2. There were two Summary cases filed before the Court of the Metropolitan Magistrate 33rd Court. They are: (a) No. 4001/SS/2016 and (b) No. 4081/SS/2016.
The present Respondent No. 2 was the Complainant. Whereas there were three accused persons. One is the Company and Nos. 2 and 3 are its Directors. These revisions are filed by accused nos. 2 and 3. The accused issued two cheques dated 29.10.2015 for Rs. 50 Lakhs each, in all amounting to Rs. 1 Crore. They were issued towards discharge of hand loan. On presentation, they were dishonoured and that is why, two private cases were filed.
Appearance
3. Initially, accused have appeared before the trial Court. The events are as follows:
(b) Their plea was also recorded on 07/07/2017.
(c) However thereafter, they have remained absent and even their advocate.
(d) Even on one occasion that is on 25/09/2017 bailable warrant for Rs. 5,000/- was issued.
(e) The Complainant filed an affidavit of examination-in-chief on 06.02.2018. Cross-examination was deferred.
(f) Finally, on 19.03.2018, no cross order was passed.
(g) Complainant closed the evidence and matter is adjourned for recording of 313 statement to 05.06.2018.
(h) Draft of 313 statement is annexed to the revision application. It contains only questions and no answers.
4. Finally, the learned Magistrate convicted all the accused for an offence punishable under Section 138 read with 141 of the Negotiable Instruments Act vide two judgments dated 05/06/2018. The sentence in every case is as follow:
(b) fine is double amount of cheque i.e. Rupees One crore in every case.
(c) There is simple interest of 9% from the date of the complaint till its realization.
(d) The amount has to be paid to the Complainant by way of compensation.
Criminal appeals
5. Both the accused woke up from slumber and two criminal appeal nos. 382 of 2018 and 383 of 2018 were filed before the Court of City Civil Greater Mumbai. One of the ground was statement of the accused was not recorded under Section 313 of the Criminal Procedure Code. It does not find favour with them. The Appellate Court emphasized on the conduct of the accused in not appearing on six occasions (Para No. 15). The Appellate Court concluded “accused have not rebutted the presumption.” The Appellate Court emphasized on not adducing any evidence and rejected that contention (Para No. 25). The conviction and the sentence are confirmed on 28.02.2023 vide two separate judgments. That is how these two revisions are filed.
Filing of Revisions
6. This Court while suspending the sentence has directed the Applicants-accused to deposit the amount in installments. The Complainant was permitted to withdraw the amount as per two orders dated 29.11.2023. This Order was stayed by me as per subsequent order dated 01.02.2024 considering the circumstances prevailing at that time. Thereafter, the Complainant insisted for recalling the said Order. It was not recalled. Instead, both revisions are heard finally.
7. Both the learned Advocates argued vehemently and relied upon various citations. The Hon’ble Supreme Court has also dealt with issue of recording of statement and manner of its recording. In some of the judgments, the High Courts have given general guidelines to the trial Magistrate how to proceed in a matter arising under the provisions of Section 138 of the Negotiable Instruments Act and dealing with different stages. It is true in some of the ju
The trial court can convict under Section 138 in the absence of the accused if justified, emphasizing the quasi-criminal nature of such proceedings.
The trial court can convict under Section 138 in the absence of the accused if justified, emphasizing the quasi-criminal nature of such proceedings.
The trial Court may proceed in the absence of the accused in Section 138 cases, dispensing with the Section 313 statement if the accused's absence is unjustified.
The court established that the accused has the right to file a written statement under Section 313 of the Cr.PC. even after a delay, provided it does not prejudice the complainant, reinforcing the pr....
The accused is not entitled to provide evidence via affidavit under the Negotiable Instruments Act; such a right is exclusively reserved for the complainant to ensure a fair trial.
The central legal point established in the judgment is the admissibility of the accused's evidence on affidavit in a Section 138 proceeding under the Negotiable Instruments Act, 1881, and the nature ....
Dishonour of cheque – There is no necessity to recall and re-examine complainant after summoning of accused, unless Magistrate passes a specific order as to why complainant is to be recalled.
Procedural irregularities in trials under the Negotiable Instruments Act do not invalidate judgments unless they cause prejudice to the parties involved; trial integrity must prioritize substantive j....
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