High Court · 2025

1. Heard Sri Sanjay Prakash Tiwari, learned counsel for the applicant and Sri K.K. Vishwakarma, learned AGA for the State.

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 case of the applicant is that a complaint stood lodged by the opposite party no.2 on 18.9.2024 under Section 138 of the N.I. Act against the applicant with an allegation that with respect to dishcharge of a liability a cheque bearing no.000110 of Rs.5 lakhs stood drawn on 23.7.2024 which on presentation in the bank was dishonoured with remarks funds insufficient on 29.7.2024 and the information whereof was given to the opposite party no.2 on 1/11.8.2024 followed by a statutory demand notice dated 5.8.2024 and filing of a complaint under Section 138 of the N.I. Act on 18.9.2024 and thereafter the applicant came to be summoned on 15.1.2025 under Section 138 of the N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that post enforcement of the B.N.S.S. 2023 on 1.7.2024 it is obligatory upon the court below to have put to notice the applicant at pre- cognizance stage however, the said exercise has not been undertaken. He seeks to rely the decision in Prateek Agarwal vs. State of U.P. and another Application U/S 482 No.10390 of 2024 decided on 26.11.2014. He thus submits the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

5. Learned AGA on the other hand submits that once the cheque stood drawn and it was dishonoured when the presumption under Section 139 of the N.I. Act would be there however he could not dispute the fact that the complaint in question was lodged on 18.9.2024 post enforcement of B.N.S.S. 2023 on 1.7.2024. He thus submits that the summoning order be set aside and the matter be remitted back to the court below.

6. I have heard the submissions so made across the bar and perused the record carefully. The summoning order dated 15.1.2025 reads as under:- नययययलयय अततररक नययययलय, वयरयणसस। पररवयद ससखयय 3389/2024 रयजजल कपपर बनयम तवनय कज मयर अगवयल तदनयसक :-15-01-2025 पजकयर पर पररवयदस कक तवदयन अधधवकय उपसससत। पररवयदस कक तवदयन अधधवकय कक सजनय एवस पतयवलस कय अवलककन तकयय। पररवयदस कय कसन हह तक, अतभयजक तवनय कज मयर अगवयल नक अपनक दयतयतवव कक कय चकक नमबर 000110 उनमकचन हकतज पररवयदस कक रपयक 50,00,000.00 तदनयसतकत 22-07-2024 पदयन तकयय। पररवयदस नक उक चकक कक अपनक खयतक मम कक तटपपणस कक सयस तदनयसक 01- जमय तकयय। उक चकक "funds insufficient" 08-2024 कक अनयदररत हक गयय। पररवयदस नक अतभयजक तवनय कज मयर अगवयल कक तदनयसक 05-08-2024 कक तवधधक नकतटस पकतषत तकयय। अतभयजक तवनय कज मयर अगवयल नक धनरयतश कय भजगतयन नहह तकयय। पररवयदस नक तदनयसक 18-09- 2024 कक पररवयद दयधखल तकयय। पसतजत पररवयद पररवयदस दयरय धयरय 145 अनतगरत दयधखल शपस-पत, चकक, तवरद धयरय 138 अपरयध बनतय हह। परकयमय धलखत अधधतनयम कक मकमक एवस नकतटस सक समधसरत हह। अतभयजक कक परकयमय धलखत अधधतनयम कक अनतगरत पसम दषटय अतभयजक तवनय कज मयर अगवयल कक धयरय 138 अनतगरत तवचयरण हकतज समन तकयक जयनक कय आधयर पययरप हह। परकयमय धलखत अधधतनयम कक आदकश अतभयजक तवनय कज मयर अगवयल कक धयरय 138 परकयमय धलखत अधधतनयम कक अनतगरत तवचयरण हकतज समन तकयय जयतय हह। उपसससतत हकतज तदनयसक 27-02 2025 तवरद समन जयरस हक। पररवयदस आवशयक पहरवस करक। तनयत कर अतभयजक कक सपयर कज मयर धससह) ( पसठयससन अधधकयरस अततररक नययययलय, वयरयणसस।

7. 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."

8. In the decision of Prateek Agarwal (supra) had the occasioned to consider the said issue and it was observed 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 7 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 8 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. 10 (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."

9. A close reading of summoning order would reveal that the same is dated 15.1.2025 and it relates to the complaint dated 18.9.2024 which is post enforcement of the B.N.S.S. 2023 whereby first proviso to Section 223 of the B.N.S.S. mandates putting to notice to the accused at pre-cognizance stage. Since the said exercise had not been undertaken and it is not forthcoming from the summoning order and the same is not in conformity and consonance with law of land.

10. Following the judgment in Prateek Agarwal (supra) the summoning order cannot be sustained. Accordingly, the application is being decided in the following terms:-(a) the summoning orders dated 15.1.2025 is set aside and (b) matters stands remitted back to the court below to pass a fresh order.

11. For facilitation and early disposal the applicant shall submit the certified copy of the order passed today by 18.7.2025.

12. The applications stand disposed of. Order Date :- 14.7.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad

1. Heard Sri Sanjay Prakash Tiwari, learned counsel for the applicant and Sri K.K. Vishwakarma, learned AGA for the State.

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 case of the applicant is that a complaint stood lodged by the opposite party no.2 on 18.9.2024 under Section 138 of the N.I. Act against the applicant with an allegation that with respect to dishcharge of a liability a cheque bearing no.000110 of Rs.5 lakhs stood drawn on 23.7.2024 which on presentation in the bank was dishonoured with remarks funds insufficient on 29.7.2024 and the information whereof was given to the opposite party no.2 on 1/11.8.2024 followed by a statutory demand notice dated 5.8.2024 and filing of a complaint under Section 138 of the N.I. Act on 18.9.2024 and thereafter the applicant came to be summoned on 15.1.2025 under Section 138 of the N.I. Act.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that post enforcement of the B.N.S.S. 2023 on 1.7.2024 it is obligatory upon the court below to have put to notice the applicant at pre- cognizance stage however, the said exercise has not been undertaken. He seeks to rely the decision in Prateek Agarwal vs. State of U.P. and another Application U/S 482 No.10390 of 2024 decided on 26.11.2014. He thus submits the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

5. Learned AGA on the other hand submits that once the cheque stood drawn and it was dishonoured when the presumption under Section 139 of the N.I. Act would be there however he could not dispute the fact that the complaint in question was lodged on 18.9.2024 post enforcement of B.N.S.S. 2023 on 1.7.2024. He thus submits that the summoning order be set aside and the matter be remitted back to the court below.

6. I have heard the submissions so made across the bar and perused the record carefully. The summoning order dated 15.1.2025 reads as under:- नययययलयय अततररक नययययलय, वयरयणसस। पररवयद ससखयय 3389/2024 रयजजल कपपर बनयम तवनय कज मयर अगवयल तदनयसक :-15-01-2025 पजकयर पर पररवयदस कक तवदयन अधधवकय उपसससत। पररवयदस कक तवदयन अधधवकय कक सजनय एवस पतयवलस कय अवलककन तकयय। पररवयदस कय कसन हह तक, अतभयजक तवनय कज मयर अगवयल नक अपनक दयतयतवव कक कय चकक नमबर 000110 उनमकचन हकतज पररवयदस कक रपयक 50,00,000.00 तदनयसतकत 22-07-2024 पदयन तकयय। पररवयदस नक उक चकक कक अपनक खयतक मम कक तटपपणस कक सयस तदनयसक 01- जमय तकयय। उक चकक "funds insufficient" 08-2024 कक अनयदररत हक गयय। पररवयदस नक अतभयजक तवनय कज मयर अगवयल कक तदनयसक 05-08-2024 कक तवधधक नकतटस पकतषत तकयय। अतभयजक तवनय कज मयर अगवयल नक धनरयतश कय भजगतयन नहह तकयय। पररवयदस नक तदनयसक 18-09- 2024 कक पररवयद दयधखल तकयय। पसतजत पररवयद पररवयदस दयरय धयरय 145 अनतगरत दयधखल शपस-पत, चकक, तवरद धयरय 138 अपरयध बनतय हह। परकयमय धलखत अधधतनयम कक मकमक एवस नकतटस सक समधसरत हह। अतभयजक कक परकयमय धलखत अधधतनयम कक अनतगरत पसम दषटय अतभयजक तवनय कज मयर अगवयल कक धयरय 138 अनतगरत तवचयरण हकतज समन तकयक जयनक कय आधयर पययरप हह। परकयमय धलखत अधधतनयम कक आदकश अतभयजक तवनय कज मयर अगवयल कक धयरय 138 परकयमय धलखत अधधतनयम कक अनतगरत तवचयरण हकतज समन तकयय जयतय हह। उपसससतत हकतज तदनयसक 27-02 2025 तवरद समन जयरस हक। पररवयदस आवशयक पहरवस करक। तनयत कर अतभयजक कक सपयर कज मयर धससह) ( पसठयससन अधधकयरस अततररक नययययलय, वयरयणसस।

7. 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."

8. In the decision of Prateek Agarwal (supra) had the occasioned to consider the said issue and it was observed 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 7 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 8 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. 10 (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."

9. A close reading of summoning order would reveal that the same is dated 15.1.2025 and it relates to the complaint dated 18.9.2024 which is post enforcement of the B.N.S.S. 2023 whereby first proviso to Section 223 of the B.N.S.S. mandates putting to notice to the accused at pre-cognizance stage. Since the said exercise had not been undertaken and it is not forthcoming from the summoning order and the same is not in conformity and consonance with law of land.

10. Following the judgment in Prateek Agarwal (supra) the summoning order cannot be sustained. Accordingly, the application is being decided in the following terms:-(a) the summoning orders dated 15.1.2025 is set aside and (b) matters stands remitted back to the court below to pass a fresh order.

11. For facilitation and early disposal the applicant shall submit the certified copy of the order passed today by 18.7.2025.

12. The applications stand disposed of. Order Date :- 14.7.2025 piyush PIYUSH KUMAR High Court of Judicature at Allahabad