Section 138 complaint procedure: oral examination before notice is directory, not mandatory, under the new criminal procedure code.

In complaints under Section 138 of the Negotiable Instruments Act, 1881, cognizance may proceed on the complaint, supporting documents and affidavit, and the Magistrate is not bound to first examine the complainant and witnesses on oath before issuing notice under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023. The procedural requirement of oral examination at that stage remains directory in this special class of cases, and the insertion of the hearing proviso in Section 223(1) does not alter that settled position.

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Issues: Whether, in a complaint under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate is required to first examine the complainant and witnesses on oath before issuing notice to the proposed accused under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Analysis: Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 requires the Magistrate, while taking cognizance on a complaint, to examine the complainant and witnesses present on oath, and its first proviso mandates that no cognizance shall be taken without giving the accused an opportunity of being heard. In complaints under Section 138 of the Negotiable Instruments Act, 1881, however, the governing procedural framework recognises a special regime. The evidence of the complainant may be given by affidavit under Section 145 of the Negotiable Instruments Act, 1881, and cognizance may be taken on the complaint, supporting documents, and affidavit. The Magistrate therefore retains discretion whether to call the complainant or witnesses for oral examination before issuing process. The requirement of oral examination at that stage is not absolute in such cases, and the insertion of the hearing proviso in Section 223(1) does not alter that settled position.

Conclusion: The Magistrate was not bound to examine the complainant and witnesses on oath before issuing notice under the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The challenge to the notice was rejected.

Ratio Decidendi: In a complaint under Section 138 of the Negotiable Instruments Act, 1881, cognizance may validly proceed on the complaint, supporting documents, and affidavit, and the examination of the complainant and witnesses before issuance of notice is directory, not mandatory, even after Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023.

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