Allahabad High Court
Maya Verma vs State Of U.P. And Another on 2 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:101814
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 19317 of 2025
Applicant :- Maya Verma
Opposite Party :- State of U.P. and Another
Counsel for the Applicant:- Vijay Bahadur Shivhare, Amit Kumar Mishra
Counsel for the Opposite Party:- A.G.A.
Hon'ble Vikas Budhwar,J.
1. Supplementary Affidavit dated 28.05.2025 filed today is taken on record.
2. Heard Sri Vijay Bahadur Shivhare, learned counsel for the applicants and Sri Abhishek Tripathi, learned A.G.A. for the State.
3. In view of the order, which is being proposed to be passed today, notices are not being issued toi O.P. No.2.
4. This is an application under Section 528 of BNSS preferred by the applicant for quashing the entire criminal proceeding of Complaint Case No. 23944 of 2024 including summoning order dated 01-02-2025 passed by learned Additional Chief Judicial Magistrate Court No.3 Fatehpur, District Fatehpur passed under section 138 N.I. Act Police Station-Kotwali Fatehpur, District Fatehpur.
5. Learned counsel for the applicant has submitted that on 24.10.2024, a complaint under Section 138 of the N.I. Act came to be filed by O.P. No.2 against the applicant with the allegation that with respect to discharge of her liability, the applicant had drawn a cheque bearing number "71865" dated 28.08.2024 of Rs.45,00,000/-, which on presentation in the bank on 23.09.2024 came to be dishonoured on 27.09.2024, information whereof was made available to the O.P. no.2 on 01.10.2024. Thereafter a statutory notice came to be issued by O.P. non.2 on 08.10.2024 and 14.10.2024 followed by a complaint on 24.10.2024. Thereafter on 01.02.2025, the Court of Addl. Chief Judicial Magistrate, Court No.3, Fatehpur proceeded to summon the applicant under Section 138 of N.I. Act.
6. Questioning the summoning order, the applicant has preferred the present application.
7. Learned counsel for the applicant has submitted that the summoning order cannot be sustained in any manner whatsoever, particularly when with the enforcement of the BNSS, 2023 with effect from 01.07.2024, now first proviso to Section 223 of the BNSS obligates the Court to put to notice the accused at pre-cognizance stage. He submits that in the present case, from the perusal of the summoning order, there is no recital about the fact that the applicant was put to notice at a pre-cognizance stage. He seeks to rely upon the judgment of a coordinate Bench of this Court in Prateek Agarwal vs. State of U.P., 2024 Lawsuit (Alld) 1825. According to him, the summoning order be set aside, matter be remitted back to the court below to pass a fresh order. Learned counsel for the applicant has also invited attention of this Court towards para-4 of the Supplementary Affidavit so as to contend that he was not put to notice at pre-cognizance stage.
8. Learned A.G.A. on the other hand submits that from the complaint it is apparent that the applicant had drawn a cheque which came to be dishonoured and the presumption under Section 139 of the N.I. Act would always be there, but he could not point out from the summoning order, that the applicant was put to notice at a pre-cognizance stage. According to him, the summoning order be set aside, matter be remitted back to the court below to pass fresh orders.
9. I have heard the learned counsel for the parties and perused the records carefully. For reference Section 223 of the BNSS is being quoted hereunder: -
"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."
10. A close reading of the first proviso to Section 223 would reveal that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. Here in the present case, nothing is forthcoming from the summoning order that the applicant had been put to notice at a pre-cognizance stage. Since the said exercise is apparently lacking thus, respectfully following the judgment in Prateek Agarwal (supra), this Court has no option but to quash the summoning order dated 01.02.2025. Accordingly, the application is being disposed of in following terms:
(i) Order dated 01.02.2025 passed in Complaint Case No. 23944 of 2024, Rajendra Kumar vs. Maya Verma by Addl. Chief Judicial Magistrate, Court No.3, Fatehpur is set aside.
(ii) Matter stands remitted back to the court below to pass a fresh order strictly in accordance with law.
(iii) For facilitation of early disposal, the applicant shall furnish the certified copy of the order passed today by 18.07.2025.
11. Needless to point out that the Court has not adjudicated the matter on merits. However, the order has been passed on the ground that there had been procedural infirmity.
Order Date :- 2.7.2025
N.S.Rathour
(Vikas Budhwar, J)
