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.

JUDGMENT :

1. The only issue argued before me is about power of the trialCourt to proceed with the trial for an offence punishable underSection 138 of the Negotiable Instruments Act in absence of theaccused. That is to say, ‘when neither accused nor his advocateappeared during evidence recording stage, whether trial Court can a)proceed further, b) dispense statement under section 313 of theCriminal Procedure Code and c) convict the accused’?

Background

2. There were two Summary cases filed before the Court of the Metropolitan Magistrate 33^rd Court. They are :-

a) No. 4001/SS/2016

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:-

a) They furnished bail on 07/07/2017.

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:-

a) Simple imprisonment for one year and in case of default for three months;

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 judgments, the Courts have dealt with