TaxTMI 
TaxTMI 
2025 (4) TMI 1841
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....nce 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- * Corrected Vide Chamber order dated 07.05.2025 (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 the 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 opportunit....
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....nds in the account .- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a n....
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....in Mohd. Abdul Sammad Vs The State of Telangana and another [(2024) INSC 506] observed in the context of Section 125 of the Cr. P.C that provisions of special law prevail over general law. 10. In Suresh Nanda Vs CBI [2008(3) SCC 674] the Supreme Court observed that the Passport Act is a Special Law whereas Cr. P.C is a General Law. It is well settled that the special law prevails over General Law. 11. The Apex Court in P. Mohan Raj & others Vs M/s. Shah Brothers Ispat Pvt. Ltd [AIR 2021 SC 1308]., observed that provisions contained in Section 138 of the NI Act is really a hybrid provision to enforce payment under a bounced cheque, if it is otherwise enforceable in Civil Law. On a bare reading of Section 142 of the NI Act, the procedure under the Cr. P.C has been departed from. First and foremost, no Court is to take cognizance of an offence punishable under Section 138 of the NI Act except on a complaint made in writing by the payee or the holder in due course of the cheque - the victim. By Section 147 of the NI Act, offences under the NI Act are compoundable without any intervention of the Court as is required by Section 320(2) of the Cr. P.C (Section 359 of BNSS). Section 1....
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.... (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 15. Section 144 of NI Act reads thus; 144. Mode of service of summons. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) and for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may direct a copy of summons to be served at the place where such accused or witness ordinarily resides or carries on business or personally works; for gain, by speed post or by such courier services as are approved by a Court of Session. (2) Where an acknowledgment purporting to be signed by the accused or the witness or an endorsement purported to be made by any person authorised by the postal department or the courier services that the accused or the witness refused to take delivery of summons has been received, the Court issuing the summons may declare that the summons has been duly served. 16. Section 145 of NI Act reads thus; 145. Evidence on affidavit .- (1) Notwithstanding ....
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....f proviso to Section 223(1) of BNSS before issuance of process by the Magistrate in pursuance of complaint lodged by the complainant under Section 223 of BNSS. The Court observed in the contest of the complaint filed before the Magistrate under Section 223 of BNSS that upon presentation of the complainant, the Magistrate is duty bond to examine the complainant on both [sworn statement by the complainant] and examine the witnesses, if any, the substance of such examination be reduced in writing. The Court added that the question of taking cognizance would not arise at that juncture. The Magistrate has to, in terms of the cognizance issue a notice to the accused who is given an opportunity to be heard. Notice shall be issued to the accused, at that stage, and after hearing the accused, the Court shall take cognizance and regulates its procedure thereafter. The Court further held that the accused should have an opportunity of being heard. Copy of complaint, sworn statement of the complainant, statement of witnesses, if any, shall be offended by the Court along with the notice of the Court to the accused under Section 223(1) of BNSS to enable the accused to appear and submit his case b....