S.138 NI Act | Trial Can Proceed In Absence Of Accused If He Fails To Appear And Doesn't Seek Exemption From Personal Attendance: Bombay HC

Justice S. M. Modak observed that before excising such power, the Trial Court could consider the following factors:

“a) for how many occasions accused has remained absent

b) steps taken by the complainant to secure presence of the accused.

c) reason why presence could not be secured.

d) whether all modes permissible as per law were exhausted.”

The Court was considering revision applications against conviction under Section 138 read with Section 141 NI Act.

The complainant (respondent no. 2) filed a complaint against two Directors of a company for dishonor of two cheques amounting to Rs. 1 crore. Initially, the directors appeared before the Magistrate. However, subsequently, both directors and their advocates remained absent.

The Magistrate proceeded with the trial without recording statements of the accused under Section 313 CrPC and also recorded the evidence without their presence.

The Magistrate then convicted the directors under Section 138 read with Section 141 NI Act and sentenced them to simple imprisonment of one year and a fine of Rs. 2 crore.

They then filed an appeal, however, Appellate Court affirmed the Magistrate's order. The Appellate Court noted that the accused were continuously absent on six occasions and that even their advocates were not present.

The directors thus filed the revision applications before the High Court.

The directors/applicants contended that the complainant did not try to secure their presence and that the Magistrate failed to record their statements under Section 313 CrPC and as such, were denied the opportunity to explain the evidence against them.

Referring to several Supreme Court and High Court decisions, the Court opined that the Magistrate can proceed without the presence of the accused and recording of a statement under Section 313 CrPC for offence under Section 138 NI Act.

The Court reached this view in view of 'quasi-criminal nature' of cases under Section 138 NI Act. It referred to P. Mohanraj & Ors. vs. Shah Brothers ISPAT Pvt. Ltd. (LL 2021 SC 120), where the Supreme Court termed Section 138 as a 'civil sheep' in a 'criminal wolf's' clothing' and observed that the provision as a 'quasi criminal proceeding' is meant to enforce a civil remedy.  

In view of these observations by the Apex Court, the High Court remarked, “In nutshell 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.”

The Court thus noted that the Magistrate is justified in proceeding without the accused if he has remained absent without any justification.

In the present case, the Court held that there was no illegality in the Magistrate's and Sessions Court's orders and dismissed the revision applications.

Case title: Navneet Singh Gogia & anr. vs. State of Maharashtra & anr. (Criminal Revision Application No.70 Of 2023)

Citation: 2025 LiveLaw (Bom) 29