TaxTMI 
TaxTMI 
2025 (4) TMI 430
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....has been served with a notice, under section 223 of BNSS, giving him an opportunity of hearing in the aforenoted complaint. 5. Briefly stated, the facts of the case are as follows: 5.1 The cheque allegedly issued by the Petitioner to the Respondent has been dishonoured on presentation, prompting the Respondent to institute a complaint for offence under Section 138 of the Negotiable Instruments Act, 1881 ["NI Act"]. 5.2 On receiving the above complaint, a notice dated 15th January, 2025, was issued by the Trial Court, to the Petitioner/ Proposed Accused in terms of proviso to Section 223 of BNSS affording an opportunity of hearing to the Petitioner, prior to taking cognizance of the offence. 6. Mr. Kapil Wadhwa, counsel for Petitioner, urges the following grounds to challenge the impugned notice: 6.1 The Trial Court has 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. 6.2 The Impugned notice is pre-mature and contrary to the scheme of Section 223 (1) of BNSS, which m....
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....as assailed the above order on the basis of the interpretation of Section 223 of BNSS, which, being a new provision, incorporates a procedural safeguard not found in in the corresponding provision in CrPC. For ready reference, Section 223 of BNSS is extracted below: "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 ....
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....o provide an opportunity of hearing prior to taking cognizance. 14. Mr. Wadhwa's challenge to the Impugned notice is primarily hinged on the submission that the 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. It is argued that such examination is a condition precedent and ought to precede the issuance of notice under the proviso. 15. At this juncture, it must be emphasised that the Court is presently dealing with an offence under Section 138 of the NI Act. Consequently, this decision is rendered on the basis of the legal position as it stands in relation to such offences only. In this regard, it is instructive to refer to the decision of the Full Bench of the Supreme Court in A.C. Narayanan v. State of Maharashtra and Another (2014) 11 Supreme Court Cases 790, wherein the Supreme Court, after analysing the relevant provisions of NI Act and Section 200 CrPC, observed as under: "29. From a conjoint reading of Sections 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....
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....ence 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." 18. This 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. Thus, 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. 19. At this stage, it would also be useful to refer to the decision of the Supreme Court in A. R. Antulay v. Ramdas Sriniwas Nayak (1984) 2 SCC 500 wherein the procedural steps to be followed by the Magistrate upon the filing of a private complaint were discussed in detail. The Court explained: "31.....When a private complaint is filed, the court has to examine the complainant on oath save in the cases set out in the proviso to Section 200 CrPC. After examining ....
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....amework 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 v. 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. Therefore, in cases under Section 138 of the NI Act, the Magistrate is not bound to examine the compl....