Lalaram Rajpoot vs State Of U.P. And Another
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Allahabad High Court

Lalaram Rajpoot vs State Of U.P. And Another on 28 August, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?HIGH COURT OF JUDICATURE AT ALLAHABAD
 
APPLICATION U/S 528 BNSS No. - 7579 of 2025
 
Court No. - 75
 
HON'BLE VIKAS BUDHWAR, J.
 
1. Supplementary affidavit, filed today, is taken on record. 
 
2. Heard Shri Ashutosh Upadhyay, learned counsel for the applicant and Sri J.B. Gupta, learned AGA for the State as well as Sri Ramanuj Yadav. 
 
3. This application under Section 528 BNSS has been filed by the applicant to quash the summoning order dated 09.12.2024 passed by Special Judicial Magistrate-2nd, Banda as well as entire proceedings of Complaint Case No.770 of 2024, Ashok Kumar Vs Lalaram Rajpoot, under Section-138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act, 1881'), Police Station-Kotwali Nagar, District-Banda, pending in the court of learned Special Judicial Magistrate, 2nd, Banda. 
 
4. Learned counsel for the applicant submits that a complaint was lodged by the opposite party No. 2 on 04.10.2024 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, the applicants herein had drawn a cheque bearing No.039917 of Rs. 8,00,000/- dated 12.08.2024, followed by a statutory demand notice was issued on 29.08.2024 and thereafter the complaint stood preferred under Section 138 of the N.I. Act on 04.10.2024, the applicant came to be summoned on 09.12.2024 under Section 138 of N.I. Act.
 
5. Questioning the said order, the applicant has been filed the present application. 
 
6. Learned counsel for the applicant has submitted that through the summoning order cannot be sustained on several grounds but the main and important ground which goes to the root of the matter is that in view of the enforcement of BNSS w.e.f. 01.07.2024 now first proviso to Section 223 BNSS mandates the Magistrate to put to notice the accused before at pre-cognizance stage. He seeks to rely upon the judgment in in Application U/S 482 No. 10390 of 2024; Prateek Agarwal v. State of U.P. and another. 
 
7. Learned AGA as well as counsel appearing for the opposite party no. 2 on the other hand submits that though once the cheque is to drawn and the same was dishonored, the presumption under Section 139 of N.I. Act would be there, however, they could not dispute the fact that the mandatory requirement of issuing notice and according opportunity to the applicants- accused at pre-cognizance stage had not been done. However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders. 
 
8. I have heard learned counsel for the parties and gone through the records carefully. 
 
9. Section 223 of B.N.S.S. reads as under :- 
 
"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 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 a 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 opportunity to make assertions as to the situation that led to the incident so alleged; and 
 
(b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received."
 
11. A perusal of the summoning order dated 09.12.2024 would reveal that the applicants have not been put to notice and was not accorded opportunity of hearing at the pre-cognizance stage which is mandatory in view of the first proviso to Section 223 of the BNSS in Prateek Kumar Agarwal (supra), this court held asunder: 
 
"8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C. 
 
9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- 
 
"8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 
 
9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard. 
 
10. Therefore, the procedural drill would be this way: 
 
A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter. 
 
11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023. 
 
12. Swinging back to the facts of the case the concerned Court has passed the following order: 
 
"This complaint is filed against the Accussed alleging the offence P/U/Sec.356(2) of BNS, 2023. 
 
Issue notice to the Accused as per proviso to section 223 of BNSS, 2023. 
 
For hearing. 
 
Call on 13.08.2024." 
 
The moment complaint is filed, notice is issued to the accused. This procedure is erroneous. Therefore, the petition deserves to succeed on this short ground of procedural aberration and the matter is to be remitted back to the hands of the concerned Court to redo the exercise from the beginning, bearing in mind the observations made in the course of the order. 
 
13. For the aforesaid reasons the following: 
 
ORDER 

(i) Criminal Petition is allowed.

(ii) Impugned order dated 16-07-2024 passed by the XLII Additional Chief Judicial Magistrate, Bengaluru in PCR No.9136 of 2024 stands quashed.

(iii) Matter is remitted back to the learned Magistrate to redo the exercise afresh, from the stage of entertainment of the complaint, bearing in mind the observations made in the course of the order.

(iv) The said exercise shall be undertaken within 4 weeks from the date of receipt of the copy of this order.

Consequently, I.A.No.2 of 2024 stands disposed."

10. In view of the above facts and discussions, present application is allowed. The impugned order dated 15.10.2024 is in violation of the provision of Section 223 of B.N.S.S., and therefore, the same is hereby set aside."

12. Since the applicant has not been put to notice at the pre-cognizance stage and there has been infraction of the provisions contained under first proviso to Section 223 of the BNSS, thus this Court has no option to set aside the summoning order, accordingly, the application decided in the following manner:

(a) The summoning order dated 09.12.2024 passed in Complaint Case No.770 of 2024 (Ashok Kumar Vs Lalaram Rajpoot) is set aside.

(b). The matter stands remitted back to pass fresh order strictly in accordance with law.

13. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 05.09.2025 and the court below shall proceed to decide the said proceeding with most expedition.

14. Needless to point out that the Court has not adjudicated upon the merits of the case.

15. Accordingly, the application stands disposed of.

August 28, 2025

A. Prajapati