Rakesh Kushwaha v. Amit Kushwaha) Under Section

1. Heard Sri J.K. Srivastava, learned counsel for the applicant as well as Sri J.P. Gupta, learned AGA for the State.

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

3. This application u/s 528 of BNSS has been preferred to quash the summoning order dated 23.12.2024 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-2, Ghazipur and entire proceeding of Complaint Case No.43998 of 2024 (Rakesh Kushwaha Vs. Amit Kushwaha) Under Section 138 Of Negotiable Instrument Act 1881, Police Station-Jangipur, District-Ghazipur. Pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrat-2, Ghazipur.

4. Learned counsel for the applicant has submitted that on 11.11.2024 a complaint stood lodged by the opposite party no. 2 against the applicant with an allegation that a cheque bearing no. 776652 of Rs. 32,00,000/- dated 27.09.2024 stood drawn by the applicant in favour of the opposite party no. 2 which came to be dishonored on 07.10.2024 followed by a statutory demand notice dated 21.10.2024 and a complaint on 11.11.2024 under Section 138 of the NI Act and the applicant came to be summoned on 23.12.2024. Learned counsel for the applicant submits that post enforcement of BNSS with effect from 01.07.2024 in view of proviso (i) to Section 223 of BNSS, it is mandatory and incumbent upon the court to put to notice the accused at a pre-cognizance stage. He submits that no such exercise has been undertaken, he seeks to rely upon the decision in Prateek Agarwal Vs. State of U.P. : APPLICATION U/S 482 No. - 10390 of 2024. He, thus, submits that the order be set aside, matter be remitted back to the court below to pass a fresh order.

5. Learned AGA, on the other hand, submits once the cheque stood drawn and it was dishonored, the presumption under Section 139 of the NI Act would be there but he could not dispute the fact that the complaint stood lodged post enforcement of BNSS and, thus, first proviso to Section 223 of BNSS would apply. He submits that the order be set aside, matter be remitted back to the court below to pass a fresh order.

6. I have heard the submission so made across the bar and perused the record carefully.

7. The summoning order dated 23.12.2024 is quoted in extenso.- "पतत्रावलली पपेश हहई। तलबली कपे बबन्दद पर पररवत्रादली कपे बवदत्रान अधधिवकत्रा कको पपूवर मम सदनत्रा एववं पतत्रावलली कत्रा पररशलीलन बकयत्रा। पररवत्रादली दत्रारत्रा अपनपे कथन कपे समथरन मम धित्रारत्रा 200 दवं०प्र०सवं० कपे अन्तररत स्वयवं कत्रा शपथपत व अबभिलपेखलीय सत्राक्ष्य मम सपूचली सपे सवंलग्न कर मपूल चचैक सवंख्यत्रा 776652 मद० 32,00,000 / रू० बदनत्रावंबकत 27.09.2024 चचैक अनत्रादरण मलीमको, नकोबटिस ककी प्रबत व रधजिस्टिटली ककी रसलीद दत्राधखल बकयत्रा रयत्रा हचै। पररवत्रादली कत्रा उक चचैक बदनत्रावंक 07.10.2024 कको बबक सपे अनत्रादररत हहआ, चचैक अनत्रादररत हकोनपे कपे पश्चत्रात पररवत्रादली नपे समयत्रावधधि कपे अन्दर बदनत्रावंक 21.10.2024 कको कत्रानपूनली नकोबटिस बदयत्रा। बवपकली दत्रारत्रा भिदरतत्रान न बकयपे जित्रानपे कपे कत्रारण समयत्रावधधि कपे अन्दर बदनत्रावंक 11.11.2024 कको पररवत्राद दत्राधखल बकयत्रा रयत्रा हचै। अबभियदक कपे बवरूद्ध धित्रारत्रा 138 परकत्राम्य धलखत अधधिबनयम कपे अपरत्राधि कपे बवचत्रारण कपे धलए तलब बकयपे जित्रानपे कत्रा पयत्रारप आधित्रार पत्रायत्रा जित्रातत्रा हचै। आदपेश अबभियदक अबमत कदशवत्राहत्रा कको धित्रारत्रा 138 परकत्राम्य धलखत अधधिबनयम कपे अपरत्राधि कपे बवचत्रारण कपे धलए जिररयपे समन तलब बकयत्रा जित्रातत्रा हचै। पररवत्राद पत ककी प्रबतययों एववं सत्राक्ष्ययों ककी सपूचली दत्राधखल हको। पचैरवली अन्दर 7 बदन ककी जित्राए। पतत्रावलली वत्रास्तपे हत्राधजिरली अबभियदक बदनत्रावंक 16.01.2025 कको पपेश हको।"

8. Further, Section 223 of BNSS 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."

9. A close reading of the summoning order would reveal that the complaint stood lodged under Section 138 of the NI Act on 11.11.2024 post enforcement of BNSS with effect from 01.07.2024, however, without putting to notice the applicant- accused at pre-cognizance stage, cognizance has been taken which is not as per the mandate of first proviso to Section 223 of BNSS. In Prateek Agarwal (supra), a coordinate bench of this Court.- "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." 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.

13. For the aforesaid reasons the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. (iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order. (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, I.A.No.2 of 2024 stands disposed."

10. Since the present case in hand as per the averments made by the applicant in para 18(A) that the applicant has not been put to notice at pre-cognizance stage and the same is also not forthcoming from the summoning order, thus, this Court has no option but to set aside the summoning order dated 23.12.2024.

11. Accordingly, the application is disposed of in the following terms:- (a) the order dated 23.12.2024 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-2, Ghazipur in Complaint Case No.43998 of 2024 is set aside; (b) the matter stands remitted back to the court below to pass a fresh order; (c) for facilitation of early disposal, a copy of the order be submitted before the court below by 25.07.2025. Order Date :- 15.7.2025 Rajesh

1. Heard Sri J.K. Srivastava, learned counsel for the applicant as well as Sri J.P. Gupta, learned AGA for the State.

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

3. This application u/s 528 of BNSS has been preferred to quash the summoning order dated 23.12.2024 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-2, Ghazipur and entire proceeding of Complaint Case No.43998 of 2024 (Rakesh Kushwaha Vs. Amit Kushwaha) Under Section 138 Of Negotiable Instrument Act 1881, Police Station-Jangipur, District-Ghazipur. Pending in the court of Additional Civil Judge (Junior Division)/Judicial Magistrat-2, Ghazipur.

4. Learned counsel for the applicant has submitted that on 11.11.2024 a complaint stood lodged by the opposite party no. 2 against the applicant with an allegation that a cheque bearing no. 776652 of Rs. 32,00,000/- dated 27.09.2024 stood drawn by the applicant in favour of the opposite party no. 2 which came to be dishonored on 07.10.2024 followed by a statutory demand notice dated 21.10.2024 and a complaint on 11.11.2024 under Section 138 of the NI Act and the applicant came to be summoned on 23.12.2024. Learned counsel for the applicant submits that post enforcement of BNSS with effect from 01.07.2024 in view of proviso (i) to Section 223 of BNSS, it is mandatory and incumbent upon the court to put to notice the accused at a pre-cognizance stage. He submits that no such exercise has been undertaken, he seeks to rely upon the decision in Prateek Agarwal Vs. State of U.P. : APPLICATION U/S 482 No. - 10390 of 2024. He, thus, submits that the order be set aside, matter be remitted back to the court below to pass a fresh order.

5. Learned AGA, on the other hand, submits once the cheque stood drawn and it was dishonored, the presumption under Section 139 of the NI Act would be there but he could not dispute the fact that the complaint stood lodged post enforcement of BNSS and, thus, first proviso to Section 223 of BNSS would apply. He submits that the order be set aside, matter be remitted back to the court below to pass a fresh order.

6. I have heard the submission so made across the bar and perused the record carefully.

7. The summoning order dated 23.12.2024 is quoted in extenso.- "पतत्रावलली पपेश हहई। तलबली कपे बबन्दद पर पररवत्रादली कपे बवदत्रान अधधिवकत्रा कको पपूवर मम सदनत्रा एववं पतत्रावलली कत्रा पररशलीलन बकयत्रा। पररवत्रादली दत्रारत्रा अपनपे कथन कपे समथरन मम धित्रारत्रा 200 दवं०प्र०सवं० कपे अन्तररत स्वयवं कत्रा शपथपत व अबभिलपेखलीय सत्राक्ष्य मम सपूचली सपे सवंलग्न कर मपूल चचैक सवंख्यत्रा 776652 मद० 32,00,000 / रू० बदनत्रावंबकत 27.09.2024 चचैक अनत्रादरण मलीमको, नकोबटिस ककी प्रबत व रधजिस्टिटली ककी रसलीद दत्राधखल बकयत्रा रयत्रा हचै। पररवत्रादली कत्रा उक चचैक बदनत्रावंक 07.10.2024 कको बबक सपे अनत्रादररत हहआ, चचैक अनत्रादररत हकोनपे कपे पश्चत्रात पररवत्रादली नपे समयत्रावधधि कपे अन्दर बदनत्रावंक 21.10.2024 कको कत्रानपूनली नकोबटिस बदयत्रा। बवपकली दत्रारत्रा भिदरतत्रान न बकयपे जित्रानपे कपे कत्रारण समयत्रावधधि कपे अन्दर बदनत्रावंक 11.11.2024 कको पररवत्राद दत्राधखल बकयत्रा रयत्रा हचै। अबभियदक कपे बवरूद्ध धित्रारत्रा 138 परकत्राम्य धलखत अधधिबनयम कपे अपरत्राधि कपे बवचत्रारण कपे धलए तलब बकयपे जित्रानपे कत्रा पयत्रारप आधित्रार पत्रायत्रा जित्रातत्रा हचै। आदपेश अबभियदक अबमत कदशवत्राहत्रा कको धित्रारत्रा 138 परकत्राम्य धलखत अधधिबनयम कपे अपरत्राधि कपे बवचत्रारण कपे धलए जिररयपे समन तलब बकयत्रा जित्रातत्रा हचै। पररवत्राद पत ककी प्रबतययों एववं सत्राक्ष्ययों ककी सपूचली दत्राधखल हको। पचैरवली अन्दर 7 बदन ककी जित्राए। पतत्रावलली वत्रास्तपे हत्राधजिरली अबभियदक बदनत्रावंक 16.01.2025 कको पपेश हको।"

8. Further, Section 223 of BNSS 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."

9. A close reading of the summoning order would reveal that the complaint stood lodged under Section 138 of the NI Act on 11.11.2024 post enforcement of BNSS with effect from 01.07.2024, however, without putting to notice the applicant- accused at pre-cognizance stage, cognizance has been taken which is not as per the mandate of first proviso to Section 223 of BNSS. In Prateek Agarwal (supra), a coordinate bench of this Court.- "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." 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.

13. For the aforesaid reasons the following: ORDER (i) Criminal Petition is allowed. (ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed. (iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order. (iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order. Consequently, I.A.No.2 of 2024 stands disposed."

10. Since the present case in hand as per the averments made by the applicant in para 18(A) that the applicant has not been put to notice at pre-cognizance stage and the same is also not forthcoming from the summoning order, thus, this Court has no option but to set aside the summoning order dated 23.12.2024.

11. Accordingly, the application is disposed of in the following terms:- (a) the order dated 23.12.2024 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-2, Ghazipur in Complaint Case No.43998 of 2024 is set aside; (b) the matter stands remitted back to the court below to pass a fresh order; (c) for facilitation of early disposal, a copy of the order be submitted before the court below by 25.07.2025. Order Date :- 15.7.2025 Rajesh