TaxTMI 
TaxTMI 
2025 (5) TMI 929
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.... Afzal' Beigh, as also of the issuance of non-bailable warrant of arrest through a subsequent order dated 15.04.2025, on the main ground that the learned Magistrate while directing the issuance of pre-cognizance notice through the order impugned dated 27.03.2025 and of the non-bailable warrant of arrest through a subsequent order dated 15.04.2025, has acted in contravention of the procedure established for the trial of a complaint under the provisions the Act. 4. It is submitted by the learned counsel that a complaint under Section 138 of the Act, is required to be dealt with strictly under the provisions of the Act, more specially, contained under Section 142. He submitted that issuance of pre-cognizance notice and the subsequent non-bailable warrant of arrest by the learned trial Magistrate is unwarranted under law governing a complaint filed under Section 138 of the Act. He submitted that the Magistrate while taking cognizance on a complaint under Section 138 of the Act has to satisfy whether the conditions as laid down in the proviso to Sections 138 and under Section 142 of the Act stand complied with thereby justifying a cause of action to the complainant/payee to file a comp....
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.... (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." 6. Starting "Non obstante" clause of Section 142 of the Act actually bars the 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, taking of cognizance of an offence under Section 138 of the Act, otherwise than on a complaint in....
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....o the Magistrate that the nature of case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is for any other reason, not desired to try the case summary, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witnesses who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code (BNSS now). The provisions of Section 143 of the Act also provide for expeditious trial of any offence under Chapter (xvii) of the Act. It is profitable to reproduce the Section 143 of the Act for ready reference as under:- "Section 143 in The Negotiable Instruments Act, 1881 143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful....
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....e for not making the complaint within the prescribed period. The maintainability of a complaint under Section 138 of the Act is to be addressed by a competent Court in the light of the relevant provisions of the said Section and of the Section 142 of the Act. A Magistrate hearing a complaint under Section 138 of the Act, may under some circumstances, need to have recourse to any applicable provisions of Chapter (xxi) of the BNSS relating to the trial of summons cases by the Magistrates, for example, Sections 279 & 280 of the Sanhita regarding non-appearance or death of a complainant and withdrawal of the complaint, which is not barred. 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-obser....