N.I. Act P.S. Lalkurti District Meerut (Shamshad Ahmad v. Smt. Ankita pending in the court of Judicial Magistrate
Case Details
Court No. - 75 Neutral Citation No. - 2025:AHC:108589 Case :- APPLICATION U/S 528 BNSS No. - 22848 of 2025 Applicant :- Smt Ankita Opposite Party :- State of U.P. and Another Counsel for Applicant :- Navin Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
7. Learned AGA, on the other hand, could not dispute the said fact that the complaint stood preferred on 28.07.2024 post enforcement of the BNSS and in view of the judgment of this Court in Prateek Agarwal (supra) notice was mandatory at pre-cognizance stage. He submits that the summoning order be set aside, matter be remitted back to the court below to pass a fresh order. 8. I have heard the submission so made across the bar and perused the record carefully. 9. Summoning order dated 07.01.2025 reads as under.- "ददिननाሪक:-07.01.2025 पतनवलली पपेश हहई। पतनवलली आज तलबली आदिपेश हपेततु दनयत हहै। पररिवनदिली कपे दवदनन अधधिवकन कको तलबली बहस परि पपूवर मम सतुनन जन चतुकन हहै। साሪकपेप मम ्ቚकरिण कपे तथ्य इस ्ቚकनरि हहै दक पररिवनदिली शमशनदि अहमदि कको पाሪजनब नहैशनल बबक , शनखको जतुबलली रिकोड, धजलन गकोरिखपतुरि कन दवपकली दनरिन चहैक साሪ० 708156 धिनरिनदश अाሪकन 5,00,000/-रूपयपे ददिननाሪदकत 15.07.2024 कन ददियन गयन थन , जको बबक मम आहरिण हपेततु ्ቚस्ततुत करिनपे परि अननदिररित हकोकरि ददिाሪननाሪक 17.07.2024 कको वनपस ्ቚन् हहआ हहै, धजसककी बनबत पररिवनदिली नपे ददिननाሪक 01.08.2024 कको दवपकली कको ककोदटिस भली ददियन, जको दवपकली कको ्ቚन् हको गयन परिन्ततु दवपकली दनरिन - नकोदटिस परि भली भतुगतनन नहीሻ दकयन गयन। तब यह पररिवनदि ्ቚस्ततुत दकयन गयन हहै। ्ቚनथर/पररिवनदिली कपे दनरिन लपेखलीय सनቌኚय मम मपूल चहैक , मलीमको, रिधजस्टिरिली ककी रिसलीदि नकोदटिस ककी छनयन्ቚदत दिनधखल ककी गई हहै सनथ हली ममौधखक सनቌኚय ककी धिनरिन 200 दिाሪ०्ቚ०साሪ० ककी शपथ एन दिनधखल दकयन गयन हहै। सतुनन एवाሪ पाሪतकोवलली कन अवलकोकन दकयन गयन। ्ቚस्ततुत पररिवनदि कपे तथ्योሱ व ्ቚपतोሱ कको दृदቖኌगत रिखतपे हहए दवपकली कपे दवरु्ቍ चनरिली 138 एन.आई. एक्टि कपे गठन कपे सनथ आवश्यक दवधधिक तत्व दव्ቕमनन हहै व ्ቚथम दृष्टन मनमलन बनतन हहआ पनयन जनतन हहै . धजसकपे दवचनरिण कपे धलए दवपकली/अदनयक न्यनयनलय मम आहहत दकयपे जननपे यकोग्य हहै। आदिपेश अदभयतुक ्ቚपेस ्ቚतनप चपेधललपेवल टिटस्टि जररियपे शलीमतली अाሪदकतन कको धिनरिन 138 एन०आई० एक्टि मम दवचनरिण हपेततु आहहत दकयन जनरिली हहै। पररिवनदिली आवश्यक पहैरिवली करिम व सपूचली गवनहन दिनधखल करिपे। पतनवलली बनाሪस्तपे हनजरिली अदभयतुत ददिननाሪक 20.02.2002 कको पपेश हको।" 10. A perusal of the summoning order dated 07.01.2025 would reveal that the same does not recite the date on which at pre- cognizance stage, notice was issued and served upon the opposite party no. 2. In Prateek Agarwal (supra), the following was observed.- "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:
Arguments
1. Heard Sri Naveen Kumar Srivastava, learned counsel for the applicant as well as Sri Motilal, learned AGA for the State. 2. In view of the order which is being proposed to be passed, notice is not being issued to the respondent no. 2. 3. This application u/s 528 of BNSS has been preferred to quash the impugned order dated 07.01.25 passed by the Judicial Magistrate Court no. 2 Agra in Complaint Case no. 14961 of 2024 Under section 138 N.I. Act P.S. Lalkurti District Meerut (Shamshad Ahmad Vs. Smt. Ankita pending in the court of Judicial Magistrate/Additional Civil Judge, (JD) Court no. 1 Meerut. 4. Learned counsel for the applicant has submitted that on 28.08.2024 a complaint came to be filed by the opposite party no. 2 under Section 138 of the NI Act with respect to discharge of a liability, a cheque bearing no. 708156 dated 15.07.2024 for Rs. 5,00,000/- was drawn which came to be dishonored on 17.07.2024 followed by a statutory complaint on 01.08.2024 which came to be received upon the opposite party no. 2 on 05.08.2024 thereafter, the applicant came to be summoned under Section 138 of the NI Act on 07.01.2025. 5. Questioning the summoning order, the applicant has filed the present application. 6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that the complaint was filed on 28.07.2024 post enforcement of the BNSS, 2023 and in view of the provisions contained under proviso (i) to Section 223 at a pre-cognizance stage notice ought to have been issued to the applicant-accused, however, since the same has not been done, the summoning cannot be sustained. He seeks to rely upon the decision in Prateek Agarwal Vs. State of U.P. : APPLICATION U/S 482 No. - 10390 of 2024 , reference has also been made to paragraph 14 and 18 of the paper book.
Decision
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." 11. Accordingly, the application is disposed of in the following terms:- (a) the order dated 07.01.25 passed by the Judicial Magistrate Court no. 2 Agra in Complaint Case no. 14961 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 22.07.2025. Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad Order Date :- 8.7.2025 Rajesh