Prateek Agarwal v. State of U.P.) which in fact had followed the judgment by Karnataka High Court

2. Heard Sri Satyaveer Singh, learned counsel for the applicants in leading as well as connected applications, Sri S.P. Singh, learned State Law Officer and Sri Ram Lal Mishra, learned counsel for opposite party no.2/ complainant in leading and connected applications.

3. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record. With the consent of the parties, the applications are being decided at the fresh stage.

4. The facts of the leading application are that the complaint was lodged by the opposite party no.2 on 19.02.2024 under Section 138 of N.I. Act against the applicant with relation to dishonouring of a cheque of an amount of Rs. 4 lac dated 13.12.2023 bearing no. 000004 on 15.12.2023 followed by a statutory complaint dated 11.01.2024 and statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 20.09.2024 the court of Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16843 of 2024 summoned the applicant under section 138 of N.I. Act.

5. In so far as the connected C-I application here also complaint was lodged by the opposite party no.2 against the applicant on 19.02.2024 under Section 138 of N.I. Act with relation to dishonouring of a cheque of an amount of Rs. 5 lac dated 12.12.2023 bearing no. 000005 of an amount of Rs. 5 lacs and on 13.12.2023 followed by a statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Special Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16568 of 2024 summoned the applicant under section 138 of N.I. Act.

6. As regard the connected C-2 application is concerned the same is also pertaining to a complaint dated 19.02.2024 with relation to dishonouring of a cheque bearing no.000006 dated 12.12.223 amounting to Rs.4 lacs. On 13.12.2023 followed by a statutory demand notice dated 11.01.2024 served upon the applicant on

16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Special Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16589 of 2024 summoned the applicant under section 138 of N.I. Act.

7. With respect to connected C-3 application here also the complaint was lodged by the opposite party no.2 on 19.02.2024 under Section 138 of N.I. Act against the applicant with relation to dishonouring of a cheque of an amount of Rs. 4 lac dated 12.12.2023 bearing no. 000002 on 13.12.2023 followed by a statutory complaint dated 11.01.2024 and statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16591 of 2024 summoned the applicant under section 138 of N.I. Act

8. Learned counsel for the applicant has submitted that summoning orders so passed by the court below in leading and connected applications, cannot be sustained for a single moment particularly in view of the fact that with effect from 01.07.2024 the BNSS- 2023 came into force and as per the provisions contained under first proviso of Section 223 of BNSS, no cognizance of the offence is to be take by the Magistrate without giving the accused the opportunity of being heard. Learned counsel for the applicant submits that once the statute itself provided a procedure which was to be adopted by the court below before the summoning the applicant then it was mandatorily to be followed and in absence of the same, the summoning order cannot be sustained. He seeks to rely upon the judgment of a coordinate bench of this Court in an application U/s 482 Cr.P.C. No. 10390 of 2024 (Prateek Agarwal vs. State of U.P.) which in fact had followed the judgment by Karnataka High Court in criminal writ petition no. 7526 of 2024 (Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil). He further submits that there are various grounds for attacking the summoning orders as well as on the maintainability of the complaint itself on the ground that FIR has also been lodged but he submits that the summoning order be set aside and the matter be remitted back to the court below to pass fresh orders in terms of the first provision of Section 223 of BNSS.

9. Sri Ram Lal Mishra, learned counsel appearing for the opposite party no2. submits that though presumption U/s 139 of N.I. Act is always in favour of the holder and admittedly the cheques stood dishonoured but since with the enforcement of the BNSS-2023 with effect from 01.07.2024 at a pre-cognizance stage, opportunity is to be accorded to the accused which apparently has not been done, thus, the summoning order be set aside and the matter be remitted back to be decided within time bound manner.

10. Sri S.P. Singh, learned State Law Officer also does not dispute the said fact.

11. I have considered the submissions so made across the bar and perused the record carefully.

12. 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."

13. The first proviso of sub section 1 of Section 223 of BNSS itself provides for no cognizance of the offence shall be taken by the Magistrate without giving an accused to the opportunity of being heard. Here the Court finds, on a perusal of the summoning order in the leading and connected applications, that the court below had not put to notice the accused at a pre-cognizance stage. Thus, the summoning order cannot be sustained. In the case of Prateek Agarwal (Supra), this court in paragraph nos 8. to to 10 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. "

14. Accordingly, the summoning order dated 20.09.2024 in complaint case no. 16843 of 2024, summoning order dated 28.11.2024 in complaint case no. 16568 of 2024, summoning order dated 28.11.2024 complaint case no. 16589 of 2024 and summoning order dated 28.11.2024 in complaint case no. 16591 of 2024 passed by Special Judicial Magistrate, court no.2, Kanpur Nagar are set aside and the matter stands remitted back to the court below to pass fresh order. For facilitation, the parties shall file a certified copy of the order on 30.05.2025. It is expected to the court below to decide the case strictly in accordance with law.

15. With the observations made above, the present application along with connected applications are disposed of. Order Date :- 16.5.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA CHANDRAMANI VERMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad

2. Heard Sri Satyaveer Singh, learned counsel for the applicants in leading as well as connected applications, Sri S.P. Singh, learned State Law Officer and Sri Ram Lal Mishra, learned counsel for opposite party no.2/ complainant in leading and connected applications.

3. A joint statement has been made by learned counsel for the parties that they do not propose to file any further affidavit, however, the application be decided on the basis of documents available on record. With the consent of the parties, the applications are being decided at the fresh stage.

4. The facts of the leading application are that the complaint was lodged by the opposite party no.2 on 19.02.2024 under Section 138 of N.I. Act against the applicant with relation to dishonouring of a cheque of an amount of Rs. 4 lac dated 13.12.2023 bearing no. 000004 on 15.12.2023 followed by a statutory complaint dated 11.01.2024 and statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 20.09.2024 the court of Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16843 of 2024 summoned the applicant under section 138 of N.I. Act.

5. In so far as the connected C-I application here also complaint was lodged by the opposite party no.2 against the applicant on 19.02.2024 under Section 138 of N.I. Act with relation to dishonouring of a cheque of an amount of Rs. 5 lac dated 12.12.2023 bearing no. 000005 of an amount of Rs. 5 lacs and on 13.12.2023 followed by a statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Special Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16568 of 2024 summoned the applicant under section 138 of N.I. Act.

6. As regard the connected C-2 application is concerned the same is also pertaining to a complaint dated 19.02.2024 with relation to dishonouring of a cheque bearing no.000006 dated 12.12.223 amounting to Rs.4 lacs. On 13.12.2023 followed by a statutory demand notice dated 11.01.2024 served upon the applicant on

16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Special Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16589 of 2024 summoned the applicant under section 138 of N.I. Act.

7. With respect to connected C-3 application here also the complaint was lodged by the opposite party no.2 on 19.02.2024 under Section 138 of N.I. Act against the applicant with relation to dishonouring of a cheque of an amount of Rs. 4 lac dated 12.12.2023 bearing no. 000002 on 13.12.2023 followed by a statutory complaint dated 11.01.2024 and statutory demand notice dated 11.01.2024 which is stated to have been served upon the applicant on 16.01.2024 and the complaint was preferred on 19.02.2024. On 28.11.2024 the court of Judicial Magistrate court no.II Kanpur Nagar in complaint case no. 16591 of 2024 summoned the applicant under section 138 of N.I. Act

8. Learned counsel for the applicant has submitted that summoning orders so passed by the court below in leading and connected applications, cannot be sustained for a single moment particularly in view of the fact that with effect from 01.07.2024 the BNSS- 2023 came into force and as per the provisions contained under first proviso of Section 223 of BNSS, no cognizance of the offence is to be take by the Magistrate without giving the accused the opportunity of being heard. Learned counsel for the applicant submits that once the statute itself provided a procedure which was to be adopted by the court below before the summoning the applicant then it was mandatorily to be followed and in absence of the same, the summoning order cannot be sustained. He seeks to rely upon the judgment of a coordinate bench of this Court in an application U/s 482 Cr.P.C. No. 10390 of 2024 (Prateek Agarwal vs. State of U.P.) which in fact had followed the judgment by Karnataka High Court in criminal writ petition no. 7526 of 2024 (Sri Basanagouda R. Patil vs. Sri Shivananda S. Patil). He further submits that there are various grounds for attacking the summoning orders as well as on the maintainability of the complaint itself on the ground that FIR has also been lodged but he submits that the summoning order be set aside and the matter be remitted back to the court below to pass fresh orders in terms of the first provision of Section 223 of BNSS.

9. Sri Ram Lal Mishra, learned counsel appearing for the opposite party no2. submits that though presumption U/s 139 of N.I. Act is always in favour of the holder and admittedly the cheques stood dishonoured but since with the enforcement of the BNSS-2023 with effect from 01.07.2024 at a pre-cognizance stage, opportunity is to be accorded to the accused which apparently has not been done, thus, the summoning order be set aside and the matter be remitted back to be decided within time bound manner.

10. Sri S.P. Singh, learned State Law Officer also does not dispute the said fact.

11. I have considered the submissions so made across the bar and perused the record carefully.

12. 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."

13. The first proviso of sub section 1 of Section 223 of BNSS itself provides for no cognizance of the offence shall be taken by the Magistrate without giving an accused to the opportunity of being heard. Here the Court finds, on a perusal of the summoning order in the leading and connected applications, that the court below had not put to notice the accused at a pre-cognizance stage. Thus, the summoning order cannot be sustained. In the case of Prateek Agarwal (Supra), this court in paragraph nos 8. to to 10 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. "

14. Accordingly, the summoning order dated 20.09.2024 in complaint case no. 16843 of 2024, summoning order dated 28.11.2024 in complaint case no. 16568 of 2024, summoning order dated 28.11.2024 complaint case no. 16589 of 2024 and summoning order dated 28.11.2024 in complaint case no. 16591 of 2024 passed by Special Judicial Magistrate, court no.2, Kanpur Nagar are set aside and the matter stands remitted back to the court below to pass fresh order. For facilitation, the parties shall file a certified copy of the order on 30.05.2025. It is expected to the court below to decide the case strictly in accordance with law.

15. With the observations made above, the present application along with connected applications are disposed of. Order Date :- 16.5.2025 C. MANI (Vikas Budhwar,J.) CHANDRAMANI VERMA CHANDRAMANI VERMA High Court of Judicature at Allahabad High Court of Judicature at Allahabad