Prateek Agarwal v. State of U.P. and another

2. Heard Shri Dipak Srivastava, learned counsel for the applicant in leading and connected C1 and C2 applications and Sri S.P. Singh, learned State Law Officer for the State.

3. Sri S.P. Singh, learned State Law Officer has made a statement that he does not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh

4. In view of the order, which is being proposed to be passed today, notices are not being issued to the opposite party No. 2.

5. The case set out in the leading application is that a complaint came to be lodged by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act on 17.02.2025 with an allegation that with discharge of a liability, the applicant herein had drawn a cheque bearing No. 245446 of Rs. 11 lakhs dated 10.01.2025 which came to be dishonoured on 17.01.2025, communication whereof was made on 22.01.2025 thereafter a statutory demand notice was issued on 22.01.2025 followed by the complaint on

17.02.2025 and the applicant came to be summoned on 09.06.2025 in Complaint Case No. 118 of 2025 under Section 138 of the N.I. Act.

6. As regards, connected C1 application, the allegation is with respect to the fact that a complaint came to be lodged by the opposite party no. 2 under Section 138 of the N.I. Act on

18.10.2024 against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing No. 896862 of Rs. 6 lakhs dated 20.09.2024 which came to be dishonoured on 24.09.2024 and the communication whereof was made available to the opposite party no. 2 on

30.09.2024 followed by a statutory demand notice dated

01.10.2024 and the complaint under Section 138 of the N.I. Act on

18.10.2024 and the applicant came to be summoned on 10.12.2024 in Complaint Case No.908 of 2024.

7. With respect to connected C2 application, the complaint stood lodged on 18.10.2024 by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that the applicant had drawn a cheque bearing No. 896861 of Rs. 5 lakhs on 20.09.2024 which came to be dishonoured on 24.09.2024, communication whereof was made on 30.09.2024, a statutory demand notice was issued on 01.10.2024, followed by a complaint under Section 138 of the N.I. Act on 18.10.2024 and the applicant came to be summoned on 10.12.2024 in Complaint Case No. 907 of 2024 under Section 138 of the N.I. Act.

8. Questioning the summoning orders in leading application, connected C1 & C2 applications, the applicant has filed the present applications.

9. Learned counsel for the applicant has submitted that the summoning orders cannot be sustained for more than one reason. He submits that there is no debt or liability so attracted so as to invoke the provisions of under Section 138 of the N.I. Act and further according to him, the fundamental and core question is with regard to the compliance of the first proviso to Section 223 of the BNSS. He submits that the complaint has been lodged, post enforcement of BNSS which came into effect from 01.07.2024, thus, it was obligatory upon the court below to have put to notice, the applicant-accused at pre-cognizance stage. He seeks to refer to paragraph no. 4 and 5 of the supplementary affidavit filed therein. He also relies upon the judgment in in Application U/S 482 No. 10390 of 2024; Prateek Agarwal v. State of U.P. and another.

10. Learned State Law officer submits that once the cheque stood drawn and it was eventually dishonoured then the presumption under Section 139 of the N.I. Act would be there but he could not dispute the fact that in view of the first proviso to Section 223 of the BNSS at a pre-cognizance stage notice is to be issued to the accused. He thus submits that the said exercise is lacking, the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

11. I have heard learned counsel for the parties and gone through the records carefully.

12. Section 223 of 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."

13. A perusal of the summoning orders dated 09.06.2025 (leading application), 10.12.2024 (connected C1 application) and

10.12.2024 (connected C2 application) would reveal that the applicants have not been put to notice and was not accorded opportunity of hearing at the pre-cognizance stage which is mandatory in view of the first proviso to Section 223 of the BNSS. In Prateek Kumar Agarwal (supra), this court held asunder: "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. In view of the above facts and discussions, present application is allowed. The impugned order dated 15.10.2024 is in violation of the provision of Section 223 of B.N.S.S., and therefore, the same is hereby set aside."

14. A close reading of the summoning orders which are under challenge in leading and connected C1 and C2 applications would reveal that no exercise as mandated under first proviso to Section 223 of the BNSS has been resorted too. Since the applicant at a pre-cognizance stage being an accused was to be put to notice and was to be heard and the said exercise is lacking, thus the orders impugned cannot be sustained, accordingly, the applications decided in the following manner: (a) The summoning orders dated 09.06.2025 (leading application),

10.12.2024 (connected C1 application) and 10.12.2024 (connected C2 application) is set aside. (b). The matters stand remitted back to pass fresh order strictly in accordance with law.

15. For facilitating early disposal, the party shall furnish the certified copy of the orders before the court below by 31.07.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the applications stand disposed of. Order Date :- 22.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad

2. Heard Shri Dipak Srivastava, learned counsel for the applicant in leading and connected C1 and C2 applications and Sri S.P. Singh, learned State Law Officer for the State.

3. Sri S.P. Singh, learned State Law Officer has made a statement that he does not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh

4. In view of the order, which is being proposed to be passed today, notices are not being issued to the opposite party No. 2.

5. The case set out in the leading application is that a complaint came to be lodged by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act on 17.02.2025 with an allegation that with discharge of a liability, the applicant herein had drawn a cheque bearing No. 245446 of Rs. 11 lakhs dated 10.01.2025 which came to be dishonoured on 17.01.2025, communication whereof was made on 22.01.2025 thereafter a statutory demand notice was issued on 22.01.2025 followed by the complaint on

17.02.2025 and the applicant came to be summoned on 09.06.2025 in Complaint Case No. 118 of 2025 under Section 138 of the N.I. Act.

6. As regards, connected C1 application, the allegation is with respect to the fact that a complaint came to be lodged by the opposite party no. 2 under Section 138 of the N.I. Act on

18.10.2024 against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing No. 896862 of Rs. 6 lakhs dated 20.09.2024 which came to be dishonoured on 24.09.2024 and the communication whereof was made available to the opposite party no. 2 on

30.09.2024 followed by a statutory demand notice dated

01.10.2024 and the complaint under Section 138 of the N.I. Act on

18.10.2024 and the applicant came to be summoned on 10.12.2024 in Complaint Case No.908 of 2024.

7. With respect to connected C2 application, the complaint stood lodged on 18.10.2024 by the opposite party no. 2 against the applicant under Section 138 of the N.I. Act with an allegation that the applicant had drawn a cheque bearing No. 896861 of Rs. 5 lakhs on 20.09.2024 which came to be dishonoured on 24.09.2024, communication whereof was made on 30.09.2024, a statutory demand notice was issued on 01.10.2024, followed by a complaint under Section 138 of the N.I. Act on 18.10.2024 and the applicant came to be summoned on 10.12.2024 in Complaint Case No. 907 of 2024 under Section 138 of the N.I. Act.

8. Questioning the summoning orders in leading application, connected C1 & C2 applications, the applicant has filed the present applications.

9. Learned counsel for the applicant has submitted that the summoning orders cannot be sustained for more than one reason. He submits that there is no debt or liability so attracted so as to invoke the provisions of under Section 138 of the N.I. Act and further according to him, the fundamental and core question is with regard to the compliance of the first proviso to Section 223 of the BNSS. He submits that the complaint has been lodged, post enforcement of BNSS which came into effect from 01.07.2024, thus, it was obligatory upon the court below to have put to notice, the applicant-accused at pre-cognizance stage. He seeks to refer to paragraph no. 4 and 5 of the supplementary affidavit filed therein. He also relies upon the judgment in in Application U/S 482 No. 10390 of 2024; Prateek Agarwal v. State of U.P. and another.

10. Learned State Law officer submits that once the cheque stood drawn and it was eventually dishonoured then the presumption under Section 139 of the N.I. Act would be there but he could not dispute the fact that in view of the first proviso to Section 223 of the BNSS at a pre-cognizance stage notice is to be issued to the accused. He thus submits that the said exercise is lacking, the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

11. I have heard learned counsel for the parties and gone through the records carefully.

12. Section 223 of 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."

13. A perusal of the summoning orders dated 09.06.2025 (leading application), 10.12.2024 (connected C1 application) and

10.12.2024 (connected C2 application) would reveal that the applicants have not been put to notice and was not accorded opportunity of hearing at the pre-cognizance stage which is mandatory in view of the first proviso to Section 223 of the BNSS. In Prateek Kumar Agarwal (supra), this court held asunder: "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. In view of the above facts and discussions, present application is allowed. The impugned order dated 15.10.2024 is in violation of the provision of Section 223 of B.N.S.S., and therefore, the same is hereby set aside."

14. A close reading of the summoning orders which are under challenge in leading and connected C1 and C2 applications would reveal that no exercise as mandated under first proviso to Section 223 of the BNSS has been resorted too. Since the applicant at a pre-cognizance stage being an accused was to be put to notice and was to be heard and the said exercise is lacking, thus the orders impugned cannot be sustained, accordingly, the applications decided in the following manner: (a) The summoning orders dated 09.06.2025 (leading application),

10.12.2024 (connected C1 application) and 10.12.2024 (connected C2 application) is set aside. (b). The matters stand remitted back to pass fresh order strictly in accordance with law.

15. For facilitating early disposal, the party shall furnish the certified copy of the orders before the court below by 31.07.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the applications stand disposed of. Order Date :- 22.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad