The Karnataka High Court (Bengaluru Bench) has held that the procedure outlined in the proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), which requires giving an accused an opportunity of being heard before a Magistrate takes cognizance, does not apply to proceedings for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).
Essentially, the Court clarified that the Negotiable Instruments Act is a special law that prescribes its own distinct, summary procedure for trial under Section 143 of the NI Act, and its special provisions prevail over the general procedures of the BNSS by virtue of Section 5 of the BNSS.
The Court held that there was no legal necessity for the Magistrate to issue a notice to the accused and hear them before taking cognizance of the offence under Section 138 of the NI Act. Finding no error in the order of the Magistrate taking cognizance or the subsequent order of the revisional Court, the criminal petition was found to be without merit and was accordingly rejected.
A Single Judge Bench of Justice M. Nagaprasanna examined the relevant legal provisions, including Section 223 of the BNSS, which corresponds to Section 200 of the erstwhile Code of Criminal Procedure, 1973 (CrPC). A crucial difference noted was the newly added proviso to Section 223(1) of the 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 Bench observed that the Negotiable Instruments Act, is a special law, and Section 5 of the BNSS explicitly states that the BNSS shall not affect any special law unless there is a specific provision to the contrary. Furthermore, Section 143 of the NI Act mandates that offences under it shall be tried summarily, and Section 142 provides a self-contained procedure for taking cognizance, which begins with a written complaint by the payee.
The Bench heavily relied on the decision in the case of Sanjabij Tari v. Kishore S. Borcar [2025 SCC OnLine SC 20692], where the Apex Court explicitly agreed with the view taken by the Karnataka High Court in Ashok v. Fayaz Aahmad [2025 SCC OnLine Kar 490], and directed that there shall be no requirement to issue summons to the accused at the pre-cognizance stage for complaints filed under Section 138 of the NI Act.
The Bench also noted that the Delhi High Court in case of Mohit Juneja v. State Government of NCT of Delhi [CRL.M.C. 2282 of 2025] and the Madras High Court in the case of Ultimate Computer Care v. S.M.K. Systems [CRL.OP (MD) Nos. 19778/2022] have aligned with this view, holding that the pre-cognizance hearing under Section 223 of the BNSS is not applicable to NI Act proceedings.
Briefly, the petitioners (accused 1 to 3) are challenging an order of the IIIrd Additional District and Sessions Judge, Dakshina Kannada, Mangalore, which had upheld an earlier order by the Judicial Magistrate First Class. The initial proceedings were initiated by the respondents (complainants) under Section 138 of the NI Act after a cheque for Rs. 10 lakhs, issued by the petitioners, was returned unpaid due to a “stop payment” instruction.
The Magistrate, after recording the sworn statement of the complainants, took cognizance of the offence and registered a complaint. The petitioners challenged this order in a criminal revision petition, which was dismissed. The petitioners then approached the High Court, arguing that the Magistrate failed to follow the mandatory procedure prescribed under Section 223 of the BNSS, which requires issuing a notice to the accused and hearing them before taking cognizance.
Appearances:
Advocate K. Ravishanakar, for the Petitioner
NA, for the Respondent
