Smt. Jyotee Devi vs State Of U.P. And Another
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Allahabad High Court

Smt. Jyotee Devi vs State Of U.P. And Another on 14 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:112070
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 23340 of 2025
 

 
Applicant :- Smt. Jyotee Devi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Shubham Srivastava,Sunil Kumar Srivastava
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Sunil Kumar Srivastava learned counsel for the applicant and Sri Pankaj Kumar Rai, learned State Law Officer for the State.

2. In view of the order which is being proposed to be passed notices are not being issued to the opposite party no.2.

3. The case of the applicant is that on 24.12.2024 a complaint stood preferred by the opposite party no.2 under Section 138 of the N.I. Act against the applicant with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque of Rs.9,80,000/- bearing no.484953 dated 23.7.2024 and dishonoured on 17.10.2024 and thereafter a demand notice was issued on 12.11.2024 followed by a complaint on 24.12.2024 and the applicant came to be summoned on 20.2.2025.

4. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for a single moment particularly when the complaint herein stood lodged on 24.12.2024 post enforcement of the BNSS, 2023 which came into effect from 1.7.2024 and thus in view of the provisions contained under first proviso to Section 223 of the BNSS, 2023 at a pre-cognizance stage the applicant was to be put to notice and heard. Since the said exercise has not been undertaken thus, the summoning order cannot be sustained he seeks to rely upon the decision of coordinate Bench of this Court in Prateek Agarwal vs. State of U.P. and another Application U/S 482 No.10390 of 2024 decided on 26.11.2014.He thus submits the summoning order be set aside and the matter be remitted back to the court below.

5. Learned State Law Officer on the other hand submits that once the cheque stood drawn and the same was dishonoured presumption under Section 139 of the N.I. Act would be made but however he could not dispute the fact that the applicant was not put to notice or accorded opportunity of hearing at pre-cognizance stage as per the provisions contained under first proviso to Section 223 of the B.N.S.S. He further submits that the summoning order be set aside and the matter be remitted back to the court below to pass a fresh order.

6. I have heard the submissions so made across the bar and perused the record carefully.

7. Summoning order dated 20.2.2025 has quoted hereunder:-

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?????? ???-8072/2024

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????-138 ??????????

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20.02.2025

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???????/????????? ???? ??????? ?????? ???????? ?????? ???? ???????/???????? ??????? ?????? ?????? ?? ??????? ?? ??? ?? ??? ???????? ???? ??? ?? ?? ?? ?? ???????? ???????????? ?????? ??? ????? ???? ???????? ?? ?????????? ?? ?? ???? ???? ???? ?? ??????? ? ???? ??? ???? ?????? ?????? ??????? ?????? ???? ??? ??? ???? ??????? ?????? ???? ?? ???? ??. ??? 408551/- ????? ??? ??????? ?? ??? ???? ?????? ?? ???? ???? ??? ?????? ?? ??0 571449/-????? ????????????? ?? ??? ???? ??? ????? ??? ?????? ??????? ?? ????? ?? ????? ??????? ??? ?????? ??? 9.80,000/- ????? (?? ??? ????? ???? ?????) ?? ?????? ?? ???? ??????? ?? ???? ?? ???? ?????-454953 ??????? ???? ???? ??????, ???? ????? ?? ???? ??????-6995643311 ?? ???????? 23.07.2024 ???? ???? ?? ??? ?? ??????? ?????? ?????? ???? ???? ???? ??????? ??? ?? ?????? ???? ???? ??????? ??? ?? ???? ???? ???????????? ???? ???? ?????, ???? ???????? ?? ???? ???-1984102000002967 ??? ?????? 23.07.2024 ?? ????? ??? ???? ???? ?????? ????????? ??? ?????? ???? ?? ???? ?? ???? ????? ??????? ??????? ?? ?? ??? ?? ??????? ?????? ???? ??? ??? ?? ??? ????? ?? ???? ??? ????? ?? ??? ???? ???? ???? ???? ??? ????? ??????? ?????? ???? ??? ?????? ???? ?? ???? ???? ???? ?? ???? ??? ???? ???????? ?????? ?????? ???? ????? ??? ??? ?? ??????? ???? ?????? ?????? 17.10.2024 ?? ???? ?????? ????? ?????????? ???? ?????? ??? ????????? (???????? ?????? ? ????) ?? ??????? ?? ??? ???? ?? ????? ???? ???? ???? ?? ??????? ?? ??????? ?? ?? ?? ??????? ????? ???? ?? ?? ????? ?? ????? ?? ???? ?? ??????? ?? ??? ?? ??????? ??????? ????? ??? ?????? ?????? ???? ???? ????? ?? ?? ???? ?????? 12.11.2024 ?? ????? ???????? ????? ???? ?? ?? ??????? ?? ??????? ??????? ??? ?? ? ???? ?? ???? ????? ???? ?? ???? ?? ??????? ???? ?? ?????? ???????? ?? ?? ?? ?? ???????? ???? ???? ??? ??? ???? ???? ?? ???? ?? ??????? ?? ???? 136 ??????????? ??? ??? ???? ?????? ?? ????? ?????? ???? ?? ????? ?? ?? ??? ????????? ???? ??? ???? ?? ??????? ???

??????? ?? ?? ?? ?????? ?? ?????? ??? ???????? ??????? ??? ???? ?? ??????? ???? ???? ??????, ???? ???? ?? ??? ???, ?????? ????. ?????, ????????? ???? ????? ???? ??? ???

???????? ?? ????? ??? ???? ?? ?????? ?? ?? ?????? ?? ?? ???? ??0-6995643311, ?? ??? ???-484953 (??????? ???? ???? ??????, ???? ?????) ???????? 23.07.2024, ?? ??? 9.60.000/- ????? (?? ??? ????? ???? ?????) ?? ???? ??????? ????? ??????? ?? ???? ??? ??????? ??????? ?????? ???? ?????? ???? ???? ??? ??? ???????????? ???? ???? ?????, ???? ???????? ?? ?????? ????? ?? ?????? ???? ??? ??????? ???? ??? ????????? ?????? ? ???? ?? ???? ?????? 17.10.2024 ?? ?????? ?? ???? ??????? ?????? ??? ?????? ???? ?? 15 ??? ?? ???? ??????? ?? ????? ?????? 12:112024 ?? ?? ??? ?? ???????? ?? ?????? ?????? 18.11.2024 ?? ???? ???? ???? ???????? ?????? ?????? 24.12.2024 ?? ????? ???? ??? ??? ??????? ?????? ????? ??? ?? ?? ???? ?? ??? ???????? ???? ??? ??? ?????? ?? ????? ?? ?????? ??? ??????? ?? ???? ???? ??????? ??? ???????? ?? ?? ??? ????? ??????? ??? ???? ???? ???? ?? ????? ???? ?????????? ?? ??? ??????? ?? ??????? ?? ??????? ??? ?????? ????????? ?? ???????????? ??? ??????? ??????? ?????? ???? ?? ??????? ????? ??????? 1881 ?? ???? 1318 ?? ?????? ??? ???? ???? ????? ???

????

?????/???????? ??????? ?????? ???? ????? ?????????, ????? ???? ????????? ???????? ?????? ??? ????? ???????? ?????? ???? ????? ?????? ?? ??????? ???? ??????? 1881 ?? ???? 138 ?? ??????? ?? ???? ???? ??? ??????? ????????? ?? ???? ????? 226 227?????? ??? ????????? ?? ?????? ??? ????? ???????? ???? ?????? ?????? 15.04.2025

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8. Apparently the complaint stood lodged on 24.12.2024 and the summoning order came to be passed on 20.2.2025.

9. Importantly B.N.S.S. came into effect from 1.7.2024 thus under Sub-Section 223 of the B.N.S.S. it was incumbent upon the court below to have issued notice to be accrued at a pre-cognizance stage.

10. Section 223 of the 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. In the decision of Prateek Agarwal (supra) had the occasioned to consider the said issue and it was observed 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 7 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 8 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. 10 (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."

11. Since the applicant was not put to notice at precogniznace stage and the relevant averments have been made in para 18 of the application thus, the summoning order cannot be sustained.

14. Following the judgment in Prateek Agarwal (supra) the summoning order cannot be sustained. Accordingly, the application is being decided in the following terms:-(a) the summoning orders dated 20.2.2025 is set aside and (b) matters stands remitted back to the court below to pass a fresh order.

15. For facilitation and early disposal the applicant shall submit the certified copy of the order passed today by 18.7.2025.

16. The applications stand disposed of.

Order Date :- 14.7.2025

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