138 of n. i. act

minsal (Querist) 30 May 2024 This query is : Resolved
Sir,
In a 138 matter the Complainant has filed evidence, and a no cross order was passed against the accused. Even after No cross order is passed the accused since many years continuously remained absent on the medical ground even after issuance of bailable and non-bailable warrants. under the circumstances can the complainant pray for the trial of absentia against the accused?
is there any other remedy available for the complainant?
Thanks in advance.

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This discussion addresses a complainant's options when an accused person, despite a 'no cross order' and issued warrants, remains absent for years, often citing medical grounds. While the current Criminal Procedure Code (CrPC) doesn't explicitly allow for trial in absentia, the new Bharatiya Nagarik Suraksha Sanhita, 2023, introduces this provision from July 2024. Until then, complainants may need to explore other remedies under Chapter VI C of the CrPC, 1973, with the court ultimately deciding on suitable orders, though benefits might be limited in cheque bounce cases.

T. Kalaiselvan, Advocate (Expert) 31 May 2024
Evidence recorded in absence of the absconding accused may be used against him in certain cases—Section 512(1) provides that whenever it is proved that an accused person has absconded and there is no immediate prospect of arresting him, any Court competent to try or commit such person for trial for the offence complained or may, in his absence, examine the witnesses produced for the prosecution and record their depositions, and such depositions may, on the arrest of the accused person, be used in evidence against him, if the deponent is dead or is incapable of giving evidence, or his attendance cannot be conveniently procured. It is also to be noted in connection with this the Section 164 enables a Magistrate to record, in the same manner as evidence, any statement regarding an offence made by an accused person whomsoever it may implicate.
—Proceedings under Section 512 should commence by evidence being taken and recorded (1) that the accused person has absconded, and (2) that due pursuit having been made, there is no immediate prospect of arresting him.

minsal (Querist) 31 May 2024
Sir,
thank you for replying.

minsal (Querist) 31 May 2024
Sir, thank you for replying. But I want to know one more thing that Can I make an application for "the trial of absentia"? the Accused is not yet declared as absconded

T. Kalaiselvan, Advocate (Expert) 31 May 2024
You can initite process in the court as per procedures of law, it is the court which will pass suitable orders, but in cheque bounce cases you may not get the proper benefits unlike the regular criminal case

P. Venu (Expert) 03 June 2024
Criminal Procedure Code, 1973 which is in force at present does not contain any provision for trial in absentia. In fact, there is no Section 512 in the extant Code.

The New CrPC (Bharatiya Nagarik Suraksha Sanhita, 2023), coming into force with effect from 1st July 2024, provides for trial in absentia under Section 356. However, the new Code is of no application retrospectively.

As such, the only option available for you is to invoke the provisions of Chapter VI C of CrPC, 1973.

minsal (Querist) 25 June 2024
hello sirs,
Thank you so much for providing your valuable guidance.

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