High Court

1. Heard Sri Rafeek Ahmad Khan, learned counsel for the applicants in leading, connected C-I and connected-IIapplications and Sri J.B. Singh, learned AGA for the State in leading, connected C-I and connected-II applications.

2. In view of the order which is being proposed to be passed notices are not being issued to the opposite party no.2.

3. The facts of the leading application are that a complaint under Section 138 of the N.I. Act came to be filed by the opposite party no.2 on 4.9.2024 against the applicant with an allegation that with respect to discharge of a liability a cheque for an amount of Rs.70 lakhs bearing no.000203 came to be drawn by the applicant on 25.5.2024 which on presentation in the bank came to be dishonoured on 3.8.2024 followed by a statutory demand notice on 9.8.2024 which came to be served upon the applicant on 14.8.2024 and the complaint on 4.9.2024 and thereafter on 20.12.2024 the applicant came to be summoned under Section 138 of the N.I. Act in Complaint Case No.6560 of 2024 by Judicial Magistrate-I, Mahoba.

4. As regards the connected application C-I is concerned, the same has been preferred by the opposite party no.2 with an allegation that a complaint was lodged on 31.8.2024 by the opposite party no.2 against the applicant with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque of an amount of Rs.8,79,000/ dated 2.5.2024 which on presentation in the bank on 20.7.2024 was dishonoured with the the remarks funds insufficient, a statutory demand notice came to be issued on 31.7.2024 which stated to have been served upon the applicant on 3.8.2024 and thereafter a complaint was lodged under Section 138 of the N.I. Act on 31.8.2024 and the applicant came to be summoned on 13.1.2025 by the court of Judicial Magistrate-I, Mahoba in Complaint Case No.6320 of 2024.

5. With respect to connected C-II application is concerned the same has been preferred by the opposite party no.2 on 4.9.2024 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability a cheque of Rs.6 lakhs was drawn by the applicant bearing no.000220 on 25.5.2024 which on presentation in the bank came to be dishonoured on 3.8.2024 followed by a statutory demand notice dated 9.8.2024 which is stated to have been served upon the applicant on 14.8.2024 and the complaint under Section 138 of the N.I. Act on 4.9.2024 and thereafter on 20.12.2024 the applicant came to be summoned under Section 138 of the N.I. Act.

6. Assailing the summoning orders in the leading and connected C- I and C-II applications the applicant has preferred the applications.

7. Learned counsel for the applicants has submitted that the court below while summoning the applicants has committed an error on the face of the record which goes to the root of the matter particularly when the complaints have been lodged post and pursuant of BNSS which came into the effect from 1.7.2024 however, without complying with the provisions contained under first proviso to Section 223 of the BNSS the applicants have been summoned. He has further submitted that first proviso to Section 223 of the BNSS itself provides that no congnizance is to be taken except without giving any opportunity of an accused of being heard. He has also submitted that in the leading application necessary averments made in paragraph no.12 and so much so in the connected C-I application averments have been made in paragraph no.12 and so much so in the connected C-II application in paragraph no.12. Submission is that once the complaints stood lodged post and pursuant of BNSS then the mandatory requirement as per first proviso to Section 223 BNSS ought to have been complied with.

8. Learned counsel for the applicants seeks to rely upon the decision of this Court in Prateek Agarwal vs. State of U.P. and another 2024 SCC Online All. 8212.

9. Learned AGA on the other hand submits that once the cheques stood drawn and the same was dishonoured the presumption would be under Section 139 of the N.I. Act but he could not dispute the fact that the complaints lodged in the present three cases are post and pursuant of BNSS and according to him the mandatory procedure contained under first proviso to Section 223 of the BNSS ought to have been complied with according to him the summoning order is set aside the matter be remitted back to court below.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. Section 223 of the B.N.S.S. reads as under:- "223. Examination of complainant. - (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them: (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless - (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."

12. A close reading of first proviso to Section 223 of the BNSS itself reveals that no cognizance of the offence shall be taken by the Magistrate without giving the accused an opportunity of hearing. Meaning thereby that opportunity of hearing is to be accorded to the accused at pre-congnizance stage. In the present case the Court finds that the summoning orders do not recite the fact regarding putting to the accused applicants to notice before taking cognizance. So much so it is also not in dispute that the complaints stood preferred by the opposite party no.2 in leading, connected C-I and C-II applications post and pursuant of the BNSS.

13. In Prateek Agarwal (supra) this Court has observed as under:-

8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- "8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.

10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. For hearing. Call on 13.08.2024."

12. The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order."

14. Following the judgment in Prateek Agarwal (supra) the summoning order cannot be sustained. Accordingly, leading, connected C-1 and connected-2 applications are being decided in the following terms:-(a) the summoning orders dated 20.12.2024, 13.1.2025 and 20.12.2024 are set aside and (b) matters stands remitted back to the court below to pass a fresh order.

15. For facilitation and early disposal the applicants shall submit the certified copy of the order passed today by 25.7.2025.

16. The applications stand disposed of. Order Date :- 8.7.2025 piyush

1. Heard Sri Rafeek Ahmad Khan, learned counsel for the applicants in leading, connected C-I and connected-IIapplications and Sri J.B. Singh, learned AGA for the State in leading, connected C-I and connected-II applications.

2. In view of the order which is being proposed to be passed notices are not being issued to the opposite party no.2.

3. The facts of the leading application are that a complaint under Section 138 of the N.I. Act came to be filed by the opposite party no.2 on 4.9.2024 against the applicant with an allegation that with respect to discharge of a liability a cheque for an amount of Rs.70 lakhs bearing no.000203 came to be drawn by the applicant on 25.5.2024 which on presentation in the bank came to be dishonoured on 3.8.2024 followed by a statutory demand notice on 9.8.2024 which came to be served upon the applicant on 14.8.2024 and the complaint on 4.9.2024 and thereafter on 20.12.2024 the applicant came to be summoned under Section 138 of the N.I. Act in Complaint Case No.6560 of 2024 by Judicial Magistrate-I, Mahoba.

4. As regards the connected application C-I is concerned, the same has been preferred by the opposite party no.2 with an allegation that a complaint was lodged on 31.8.2024 by the opposite party no.2 against the applicant with an allegation that with respect to discharge of a liability the applicant herein had drawn a cheque of an amount of Rs.8,79,000/ dated 2.5.2024 which on presentation in the bank on 20.7.2024 was dishonoured with the the remarks funds insufficient, a statutory demand notice came to be issued on 31.7.2024 which stated to have been served upon the applicant on 3.8.2024 and thereafter a complaint was lodged under Section 138 of the N.I. Act on 31.8.2024 and the applicant came to be summoned on 13.1.2025 by the court of Judicial Magistrate-I, Mahoba in Complaint Case No.6320 of 2024.

5. With respect to connected C-II application is concerned the same has been preferred by the opposite party no.2 on 4.9.2024 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability a cheque of Rs.6 lakhs was drawn by the applicant bearing no.000220 on 25.5.2024 which on presentation in the bank came to be dishonoured on 3.8.2024 followed by a statutory demand notice dated 9.8.2024 which is stated to have been served upon the applicant on 14.8.2024 and the complaint under Section 138 of the N.I. Act on 4.9.2024 and thereafter on 20.12.2024 the applicant came to be summoned under Section 138 of the N.I. Act.

6. Assailing the summoning orders in the leading and connected C- I and C-II applications the applicant has preferred the applications.

7. Learned counsel for the applicants has submitted that the court below while summoning the applicants has committed an error on the face of the record which goes to the root of the matter particularly when the complaints have been lodged post and pursuant of BNSS which came into the effect from 1.7.2024 however, without complying with the provisions contained under first proviso to Section 223 of the BNSS the applicants have been summoned. He has further submitted that first proviso to Section 223 of the BNSS itself provides that no congnizance is to be taken except without giving any opportunity of an accused of being heard. He has also submitted that in the leading application necessary averments made in paragraph no.12 and so much so in the connected C-I application averments have been made in paragraph no.12 and so much so in the connected C-II application in paragraph no.12. Submission is that once the complaints stood lodged post and pursuant of BNSS then the mandatory requirement as per first proviso to Section 223 BNSS ought to have been complied with.

8. Learned counsel for the applicants seeks to rely upon the decision of this Court in Prateek Agarwal vs. State of U.P. and another 2024 SCC Online All. 8212.

9. Learned AGA on the other hand submits that once the cheques stood drawn and the same was dishonoured the presumption would be under Section 139 of the N.I. Act but he could not dispute the fact that the complaints lodged in the present three cases are post and pursuant of BNSS and according to him the mandatory procedure contained under first proviso to Section 223 of the BNSS ought to have been complied with according to him the summoning order is set aside the matter be remitted back to court below.

10. I have heard the submissions so made across the bar and perused the record carefully.

11. Section 223 of the B.N.S.S. reads as under:- "223. Examination of complainant. - (1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them: (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless - (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."

12. A close reading of first proviso to Section 223 of the BNSS itself reveals that no cognizance of the offence shall be taken by the Magistrate without giving the accused an opportunity of hearing. Meaning thereby that opportunity of hearing is to be accorded to the accused at pre-congnizance stage. In the present case the Court finds that the summoning orders do not recite the fact regarding putting to the accused applicants to notice before taking cognizance. So much so it is also not in dispute that the complaints stood preferred by the opposite party no.2 in leading, connected C-I and C-II applications post and pursuant of the BNSS.

13. In Prateek Agarwal (supra) this Court has observed as under:-

8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C.

9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- "8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard.

10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter.

11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.

12. Swinging back to the facts of the case the concerned Court has passed the following order: "This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. For hearing. Call on 13.08.2024."

12. The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order."

14. Following the judgment in Prateek Agarwal (supra) the summoning order cannot be sustained. Accordingly, leading, connected C-1 and connected-2 applications are being decided in the following terms:-(a) the summoning orders dated 20.12.2024, 13.1.2025 and 20.12.2024 are set aside and (b) matters stands remitted back to the court below to pass a fresh order.

15. For facilitation and early disposal the applicants shall submit the certified copy of the order passed today by 25.7.2025.

16. The applications stand disposed of. Order Date :- 8.7.2025 piyush