Trial for the offence under Section 138 of the Negotiable Instruments Act (NI Act) can proceed in the absence of the accused and without recording a statement under Section 313 CrPC, if the accused or their advocate has not been attending the trial or the accused has not sought for dispensing personal attendance, says the Bombay High Court in Navneet Singh Gogia & Another v State of Maharashtra & Another [2025:BHC-AS:3054].
The High Court referred to several Supreme Court (SC) and High Court judgements, in arriving at the decision 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 High court arrived at such a view as the SC 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 P. Mohanraj & Ors. v Shah Brothers ISPAT Pvt. Ltd.
The High court says that since the proceedings under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, the mandatory recording of statement under Section 313 of the Code of Criminal Procedure (CrPC) is not applicable and the Magistrate is justified in proceeding without the accused if he has remained absent without any justification.
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