Manoj Kumar Maurya v. Lal Chand Maurya), under section

1. Heard Sri Sudeep Dwivedi, learned counsel for the applicant and Sri Indrajeet Yadav, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the summoning order dated 10.02.2025 passed by learned Additional Chief Judicial Magistrate-Ist, Jaunpur as well as entire proceeding of Complaint Case No. 1389/2024, (Manoj Kumar Maurya vs. Lal Chand Maurya), under section 138 N.I. Act, Police Station-Kheta Sarai, District Jaunpur pending before learned Additional Chief Judicial Magistrate, Court No. 12, Jaunpur.

3. The case of the applicant is that a complaint was lodged on 06.09.2022 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of the liability, a cheuqe was drawn by the applicant bearing no. 02275 of 3,00,000/- dated 30.07.2022 which on presentation in the bank was dishonored on 11.08.2022 being funds insufficient followed by a statutory notice dated 23.08.2022 and a complaint on 06.09.2022. The said complaint came to be rejected under Section 203 of the Cr.P.C. on 14.08.2024 by the Court of Additional Civil Judge (J.D.), New Court, Dasham/Judicial Magistrate, Jaunpur in Complaint Case No. 669 of 2022. Thereafter, another complaint came to be preferred by the opposite party no. 2 on 10.09.2024, verbatim the same averments which were in the earlier complaint dismissed containing the same cheque number, dishonoring and demand notice. Thereafter, on 10.02.2025 the Court of Additional Chief Judicial Magistrate-I, Jaunpur in Complaint No. 1389 of 2024 summoned the applicant under Section 138 of the NI Act.

4. Questioning the summoning, the present application has been preferred.

5. Learned counsel for the applicant has submitted that there are several grounds available with the applicant on the merits of the mater that legally enforceable debt or liability does not fasten him but he submits that the core and the fundamental issue which was skipped by the court below while summoning the applicant was non compliance of the mandatory provision of first proviso to Section 223 of the BNSS. He submits that the first proviso to Section 223 of the BNSS, the Magistrate before taking cognizance is to accord opportunity of hearing to the accused, however, in the present case the said exercise is lacking. He seeks to rely upon the decision of this Court in Prateek Agarwal Vs. State of U.P.: Application u/s 482 No. 10390 of 2024.

6. Learned AGA, on the other hand, does not dispute the said factum, however, according to him, once a cheque stood drawn then the presumption would be in favour of the holder.

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

8. For the reference Section 223 of the BNSS is being quoted hereinunder.- "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 perusal of the first proviso to Section 223 of BNSS would reveal that no cognizance of the offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. Importantly, the BNSS came into effect from 01.07.2024, the complaint under Section 138 had been lodged by the opposite party no. 2 on 10.09.2024 and the summoning is order dated 10.02.2025, thus, an inevitable position stands emerged that there has to be compliance of the provisions of 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 applicants in para 25 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 10.02.2025.

11. Accordingly, the application is disposed of in the following terms:- (a) the order dated 10.02.2025 passed in Complaint Case No. 1389 of 2024 by Additional Chief Judicial Magistrate-I, Jaunpur 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 13.06.2025. Order Date :- 28.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Sudeep Dwivedi, learned counsel for the applicant and Sri Indrajeet Yadav, learned AGA for the State.

2. This application u/s 528 of BNSS has been preferred to quash the summoning order dated 10.02.2025 passed by learned Additional Chief Judicial Magistrate-Ist, Jaunpur as well as entire proceeding of Complaint Case No. 1389/2024, (Manoj Kumar Maurya vs. Lal Chand Maurya), under section 138 N.I. Act, Police Station-Kheta Sarai, District Jaunpur pending before learned Additional Chief Judicial Magistrate, Court No. 12, Jaunpur.

3. The case of the applicant is that a complaint was lodged on 06.09.2022 by the opposite party no. 2 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of the liability, a cheuqe was drawn by the applicant bearing no. 02275 of 3,00,000/- dated 30.07.2022 which on presentation in the bank was dishonored on 11.08.2022 being funds insufficient followed by a statutory notice dated 23.08.2022 and a complaint on 06.09.2022. The said complaint came to be rejected under Section 203 of the Cr.P.C. on 14.08.2024 by the Court of Additional Civil Judge (J.D.), New Court, Dasham/Judicial Magistrate, Jaunpur in Complaint Case No. 669 of 2022. Thereafter, another complaint came to be preferred by the opposite party no. 2 on 10.09.2024, verbatim the same averments which were in the earlier complaint dismissed containing the same cheque number, dishonoring and demand notice. Thereafter, on 10.02.2025 the Court of Additional Chief Judicial Magistrate-I, Jaunpur in Complaint No. 1389 of 2024 summoned the applicant under Section 138 of the NI Act.

4. Questioning the summoning, the present application has been preferred.

5. Learned counsel for the applicant has submitted that there are several grounds available with the applicant on the merits of the mater that legally enforceable debt or liability does not fasten him but he submits that the core and the fundamental issue which was skipped by the court below while summoning the applicant was non compliance of the mandatory provision of first proviso to Section 223 of the BNSS. He submits that the first proviso to Section 223 of the BNSS, the Magistrate before taking cognizance is to accord opportunity of hearing to the accused, however, in the present case the said exercise is lacking. He seeks to rely upon the decision of this Court in Prateek Agarwal Vs. State of U.P.: Application u/s 482 No. 10390 of 2024.

6. Learned AGA, on the other hand, does not dispute the said factum, however, according to him, once a cheque stood drawn then the presumption would be in favour of the holder.

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

8. For the reference Section 223 of the BNSS is being quoted hereinunder.- "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 perusal of the first proviso to Section 223 of BNSS would reveal that no cognizance of the offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. Importantly, the BNSS came into effect from 01.07.2024, the complaint under Section 138 had been lodged by the opposite party no. 2 on 10.09.2024 and the summoning is order dated 10.02.2025, thus, an inevitable position stands emerged that there has to be compliance of the provisions of 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 applicants in para 25 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 10.02.2025.

11. Accordingly, the application is disposed of in the following terms:- (a) the order dated 10.02.2025 passed in Complaint Case No. 1389 of 2024 by Additional Chief Judicial Magistrate-I, Jaunpur 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 13.06.2025. Order Date :- 28.5.2025 Rajesh RAJESH KUMAR High Court of Judicature at Allahabad