Applicability of BNSS u/s 138 NI complaint and its
effect
Bhartiya
Nyay Sanhita 1923 (BNS), Bhartiya Nyay Suraksha Sanhita 1923 1923(BNSS) and
Bhartiya Sakshya Adhiniyam 1923 (BSA) has been notified on 01.07.2024 and as
the aforesaid enactment has come into effect on that date. As regards
[procedure what has not been specified clearly u/s 138-148 of Negotiable
Instruments Act, Cr.PC was applicable. However, corresponding provisions of the
aforesaid enactments shall now be applicable and the variance, if any is
provided for in the new enactments the same shall also be applicable.
A
recent judgment rendered by Delhi High Court in a matter captioned as Neeti
Sharma vs Saranjit Singh CRL.M.C. 2202/2025 shall be worthy of reference. In
fact, in a complaint preferred before ld Judicial magistrate, 1st
Class, captioned as Saranjit Singh vs. Neeti Sharma, the
Petitioner was served with a notice, under section 223 of BNSS, thereby, giving
opportunity of hearing in the aforenoted complaint.
CONTENTIONS OF PETITIONER
(1) The
trial court had misdirected itself by issuing notice to Petitioner as a
Proposed Accused, without applying its judicial mind to the contents of the
complaint by first examining the Complainant and its witnesses on oath or
examining the affidavits of the Complainant.
(2) The
Impugned notice is pre-mature and contrary to the scheme of Section 223(1) of
BNSS, which mandates that the complainant must first be examined, and judicial
application of mind must precede the issuance of notice to any proposed
accused. Bypassing this safeguard renders the process procedurally defective.
(3)
The complaint on the face of it lacks the necessary
material "Impugned notice". Particulars and foundational facts
to sustain even a prima facie case under Section 138 of the NI Act. The
Trial Court ought to have dismissed the complaint at the threshold without
proceeding to invoke Section 223(1).
(4) The
High Court of Kerala in Suby Antony v. Judicial First-Class
Magistrate-III 2025 SCC OnLine Ker 532 and Others and High
Court of Karnataka in Basanagouda R. Patil Vs Shivananda 2024
SCC OnLine Kar 96 has held that the summoning order has to contain reasons
should be a speaking one. If it fails to demonstrate application of judicial
mind or engagement with the procedural safeguards envisaged under Section 223,
the summoning order shall be bad in law.
(5) Reliance was also placed on the judgment of
the Supreme Court on Sant Lal Gupta & Ors Vs Modern Co-operative
Group Housing Society Limited & Ors (2010) 13 Supreme Court Cases
336.
The
impugned order under challenge read as under:
"Fresh
file received by way of assignment. It be checked and registered.
Ld.
Counsel for the complainant has submitted that the date of filing in the
present matter is 23.12.2024 and the present matter has been instituted after
01.07.2024 and the cognizance has to be taken as per BNSS 2023.
Section
223 of BNSS mandates that before taking cognizance of offence on a complaint,
the accused shall be given an opportunity of being heard.
Accordingly,
issue notice to the proposed accused on filing of PF returnable on
03.03.2025."
According
to the petitioner, the above order as impugned fails the test of BNSS on
the basis of the interpretation of Section 223 of BNSS, which, being a new
provision, incorporates a procedural safeguard and the same was not found in
the corresponding provision in Cr.PC. For further reference, Section 223
of BNSS may be reproduced for ready reference:
"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."
In
contrast, the corresponding provision of Section 200 in the
Code of Criminal Procedure 1973 may also need perusal. It does not stipulate or
mandate for affording an opportunity of hearing to the accused, before taking
cognizance. In order to appreciate the distinction between Section 223 of
BNSS and Section 200 of CrPC, the section 200 Cr.PC is reproduced below:
200. Examination of
complainant.
A
Magistrate 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
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 192 :
Provided further
that if the Magistrate makes over the case to another Magistrate under section
192 after examining the complainant and the witnesses, the latter Magistrate
need not re-examine them."
If
the aforesaid provisions of BNSS and Cr.PC is analysed, what clearly emerges is
that under the Cr.PC, no right of pre-cognizance hearing was envisaged for the
proposed accused, whereas in the BNSS Section 223 (1) clearly contains safeguard
by way of the first proviso to Section 223(1) BNSS, which mandates that "no
cognizance of an offence shall be taken by the Magistrate without giving the
accused an opportunity of being heard."
The
petitioner in Neeti Sharma (Supra) contended in the above backdrop that
the ld Magistrate erred in issuing notice, without first examining the
complainant and any witnesses present, on oath, as mandated under the main limb
of Section 223(1) of BNSS and it was emphasised that such examination is a condition
precedent and should precede the issuance of notice under the proviso.
the
Full Bench of the Supreme Court in A.C Narayanan Vs State of Maharashtra & Anr,
(2014) 11 Supreme Court Cases 790, after analysing the relevant provisions
of NI Act and Section 200 CrPC, observed as under:
"29.
From a conjoint
reading of Section 138, 142 and 145 of the NI Act as well as Section 200
of the Code, it is clear that it is open to the Magistrate to issue process on
the basis of the contents of the complaint, documents in support thereof and
the affidavit submitted by the complainant in support of the complaint. Once
the complainant files an affidavit in support of the complaint before issuance
of the process under Section 200 of the Code, it is thereafter open to the
Magistrate, if he thinks fit, to call upon the complainant to remain present
and to examine him as to the facts contained in the affidavit submitted by the
complainant in support of his complaint. However, it is a matter of discretion
and the Magistrate is not bound to call upon the complainant to remain present
before the court and to examine him upon oath for taking decision whether or
not to issue process on the complaint under Section 138 of the NI
Act. For the purpose of issuing process under Section 200 of the Code, it is
open to the Magistrate to rely upon the verification in the form of affidavit
filed by the complainant in support of the complaint under Section 138 of
the NI Act. It is only if and where the Magistrate, after considering the
complaint under Section 138 of the NI Act, documents produced in
support thereof and the verification in the form of affidavit of the
complainant, is of the view that examination of the complainant or his
witness(s) is required, the Magistrate may call upon the complainant to remain
present before the court and examine the complainant and/or his witness upon
oath for taking a decision whether or not to issue process on the complaint
under Section 138 of the NI Act."
The
aforesaid principle as enunciated in A.C. Narayanan (Supra) are predicated on the overriding effect
of Section 145 of the NI Act, which reads:
"145. Evidence on
affidavit.--
(1)
Notwithstanding anything contained in the Code of Criminal Procedure, the
evidence of the complainant may be given by him on affidavit and may, subject
to all just exceptions be read in evidence in any enquiry, trial or other
proceeding under the said Code.
(2)
The Court may, if it thinks fit, and shall, on the application of the
prosecution or the accused, summon and examine any person giving evidence on
affidavit as to the facts contained therein."
The
aforesaid provision expressly permits the complainant to tender evidence by way
of affidavit and enables the Court to proceed on such material unless a request
is made for summoning the witness for cross-examination. What is obvious, thus,
is that the NI Act carves out a procedural departure from the general
requirement under Section 200 CrPC (and now Section 223 BNSS),
recognising the affidavit as a valid substitute for oral examination at the
pre-cognizance stage.
The
Delhi High Court in Neeti Sharma (Supra) has held as under:
“20. While Section 223 of the
BNSS broadly retains the procedural framework of Section 200 of the CrPC with
respect to the examination of the complainant and witnesses, it introduces a
significant departure through the insertion of a proviso mandating that the
proposed accused be afforded an opportunity of hearing before cognizance
is taken. This proviso marks a substantive procedural safeguard that did not
exist under the earlier regime. However, with regard to offences
under Section 138 of the NI Act, the Supreme Court in A.C
Narayanan Vs State of Maharashtra has categorically held that the Magistrate
may, in his discretion, proceed on the basis of the complaint, supporting
documents, and an affidavit of the complainant, without necessarily examining
the complainant or witnesses on oath prior to issuing process. Accordingly, in
the Court's view, the procedure for such cases has not undergone any material
change with the enactment of Section 223 of the BNSS. The requirement of
examining the complainant and the witnesses upon oath, at the pre-cognizance stage
remains directory and not mandatory in complaints under Section 138 of
the NI Act”.
“21. Thus, in light of the
aforenoted decision, it becomes clear that in respect of complaints under Section
138 of the NI Act, once, the complainant files an affidavit in support of
the complaint, it is within the Magistrate's discretion to decide whether to
examine the complainant or witnesses on oath. The Magistrate is not bound to do
so and may rely solely on the complaint, supporting documents, and the
affidavit to decide whether to issue process”.
The petition in Neeti
Sharma (Supra) was thus dismissed.
It
was also held that the judgment relied upon by the petitioner Basanagouda
R. Patil (Supra)- shall have no
applicability as that pertain to Section 356(2) of the BNSS and does not
deal with offences under the Negotiable Instruments Act. It was also held
that the judgment of High Court of Kerala in Suby Antony (Supra) are factually distinguishable and shall not
apply to the controversy at hand.
Similarly,
the Jammu & Kashmir High Court in a matter reported as Mohd Afzal
Beigh vs Noor Hussain CRM (M) No. 374/2025, Crl M No. 742/2025 also having dealt
with the similar issue, but in slightly different canvas. The petitioner in
Mohd Afzal Beigh (Supra) was aggrieved, since, in pre-cognisance stage when
notice was served on the respondent (proposed accused) and he opted not to
appear, consequently non-bailable warrant was issued against the petitioner and
they petitioner approached the High Court for seeking to setting aside of the
said order, in was much as, the petitioner contended that there is no mechanism
in law whereunder the ld Magistrate before taking cognisance under BNSS, can
issue warrant. In this backdrop, it is held as under:
10.
Section 223 BNSS provides for issuance of pre-cognizance notice to the accused
and said provision was not available in the corresponding Section 200 of the
repealed Code. Such requirement provided under Section 223 of the BNSS by
way of proviso appear to be justice orientated as the same takes care of any
legitimate defence of the accused to be appreciated by the Magistrate even at
an earliest, while holding a preliminary inquiry and is not barred at all even
in respect of complaints under N.I. Act as hereinabove discussed. However, the
non-observance of the requirements, provided under Section 223 BNSS, regarding
the examination on oath of the complainant/witnesses and the issuance of the
pre-cognizance notice shall not render the proceedings invalid.
11.
The satisfaction of the competent Court, as regards the maintainability of the
complaint, in terms of the accrual of cause of action, is covered under the
"inquiry phase," preceding the "taking of cognizance". A
Magistrate while entertaining a complaint under Section 138 of the
Negotiable Instruments Act is not barred to have the observance of the
provisions providing for pre-cognizance notice.
12.
So far as the case in hand is concerned, the learned Magistrate upon satisfying
himself, regarding to record the service of pre-cognizance notice could have
inferred, the forfeiture of the right of hearing by the accused at
pre-cognizance stage of the complaint and proceeded ahead on the complaint in
accordance with law. There was no need for the Magistrate to compel the
appearance of the accused by issuance of a subsequent non- bailable warrant as
the pre-cognizance hearing was meant for him which he acquiesced. The
Magistrate is within its powers to compel the attendance of the accused after
taking cognizance on the complaint and even under such circumstances, the
normal approach of the Magistrates should be issuance of summon followed
by a bailable warrant if needed and the issuance of the non-bailable warrants
should be the last option.
Accordingly,
the instant petition was disposed of and the impugned order dated 15.04.2025
regarding issuance of non-bailable warrant of arrest, was set aside, however,
with the direction to the petitioner/accused to appear before the trial
Magistrate on the date of hearing that falls next after the uploading of the
order, for his participation in the proceedings. It was reiterated that if the
Magistrate is yet to take cognizance on the complaint, the accused is still
entitled to pre-cognizance hearing.
Section
142 of the Negotiable Instruments Act accord powers to a Judicial Magistrate to
take cognizance of an offence punishable under Section 138 of the Act
and it starts with "Non obstante" clause. A bare perusal of the
provisions of Section 142 of the Act makes it abundantly clear that a
Court of Judicial Magistrate 1st Class or a Metropolitan Magistrate, as the
case may be, can take cognizance of an offence punishable under Section
138 of the Act only upon a complaint made in writing by the payee or as the
case may be the holder in due course of the cheque. Of course, other
requisites, such as a complaint has to be made within one month of the date on
which the cause of action arises needs adherence as contained in the clause (b)
of the proviso to Section138 of the Act. Clause (2) of the Section
142 of the Act lays down as to which Court is vested with the jurisdiction
to inquire into and to try an offence under Section 138 of the Act.
Section
142 of Negotiable Instruments Act is reproduced herein for ready reference:
142.
Cognizance of offences-
(1)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973:-
(a)
no court shall take cognizance of any offence punishable under Section 138 except
upon a complaint, in writing, made by the payee or, as the case may be, the
holder in due course of the cheque;
(b)
such complaint is made within one month of the date on which the cause of
action arises under clause (c) of the proviso to Section 138:
Provided
that the cognizance of a complaint may be taken by the Court after the
prescribed period, if the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such period.
(c)
no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the first class shall try any offence punishable under Section 138.
(2)
The offence under Section 138 shall be inquired into and tried only
by a court within whose local jurisdiction--
(a)
if the cheque is delivered for collection through an account, the branch of the
bank where the payee or holder in due course, as the case may be, maintains the
account, is situated; or
(b)
if the cheque is presented for payment by the payee or holder in due course,
otherwise through an account, the branch of the drawee bank where the drawer
maintains the account, is situated.
Explanation:-
For
the purposes of clause (a), where a cheque is delivered for collection at any
branch of the bank of the payee or holder in due course, then, the cheque shall
be deemed to have been delivered to the branch of the bank in which the payee
or holder in due course, as the case may be, maintains the account."
On
the basis of the discussion as above, it is clear that the "Non
obstante" clause of Section 142 of the Act in the very beginning,
clearly bars taking of the cognizance of an offence under Section 138 of
the Act, except upon a complaint in writing made by the payee or as the case
may be the holder in due course of the cheque. Thus, what is obvious is that taking
of cognizance of an offence under Section 138 of the Act, otherwise than
on a complaint in writing cannot be taken. The police report under Section 193
BNSS corresponding to Section 173 of the repealed Code of Criminal
Procedure 1973 is only barred by the "Non obstante" clause and
it is clearly not as per the scheme of section 138-142 of Negotiable Instruments
Act. In other words, Section 142 of the Act does not mandate a payee of the
cheque or the holder in due course of the same to approach the police concerned
for lodging the FIR.
Moreover,
it is now explicit that since, the remedy for an offence under Section 138 of
the Act is a complaint, as referred to under Section 142 of the Act,
therefore, the observance of the requirements as mentioned under Section 223
BNSS regarding examination of the complainant/payee and the witnesses present
on oath as also the issuance of the pre-cognizance notice introduced by the new
legislation, is not at all barred, but may be desired in respect of a complaint
filed under Section 138 of the Act. The affidavit statements of the
complainant as well as of the witnesses may, therefore, suffice in respect of
section 138 of Negotiable Instruments Act complaint.
REMARK
The
departure as regards provisions in BNSS, more particularly, in section 223 BNSS
is that after satisfying itself about veracity of complaint and after examining
the complainant and documents attached along with the complaint, if the court is
prima facie satisfied that proposed accused may be served with the notice, the
notice shall be sent in the pre-cognisance stage itself and the accused shall
have to be heard at that very stage
itself and the formal cognisance is required to be taken, subsequent to
appearance of proposed accused, if the case is made out. Therefore, the
provisions in BNSS has clearly set the tone of trial in complaints under
section 138 of NI Act and it is now mandatory that proposed accused be heard
during pre-cognisance stage itself and cognisance could be taken only after, if
the case is made out. Moreover, as a necessary corollary thereto, the accused,
who may have been arraigned in a complain shall only be treated as proposed
accused during pre-cognisance stage. This is a departure from the
conventional law in summon case and the course of criminal trial is therefore
altered, more so, in respect of complaints, such as u/s 138 of Negotiable Instruments Act.
------
Anil
K Khaware
Founder
& Senior Associate
Socitylawandjustice.com
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