Allahabad High Court
Umesh Gupta @ Sanjay Gupta vs State Of U.P. And Another on 15 July, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:113445
Court No. - 75
Case :- APPLICATION U/S 528 BNSS No. - 24546 of 2025
Applicant :- Umesh Gupta @ Sanjay Gupta
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Harsh Narayan Singh,Prashant Kumar Singh
Counsel for Opposite Party :- G.A.
Hon'ble Vikas Budhwar,J.
1. Heard Sri Prashant Kumar, learned counsel for the applicant as well as Sri Pankaj Kumar Rai, learned State Law Officer for the State.
2. In view of the order which is being proposed to be passed, notice is not being issued to the opposite party no. 2.
3. This application u/s 528 of BNSS has been preferred to quash the entire proceeding of Complaint Case No. 819 of 2024 (Sumit Gupta Vs Umesh Gupta @ Sanjay Gupta), under Section 138 of Negotiable Instruments Act, 1881, P.S. Kotwali Nagar, District Banda including summoning order dated 04.12.2024 passed by Special Judicial Magistrate-II, Banda, pending in the court of Special Judicial Magistrate -II, Banda.
4. The case of the applicant is that a complaint was lodged by the opposite party no. 2 on 02.12.2024 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability, a cheque bearing no. 000198 came to be drawn by the applicant which on presentation in the bank stood dishonored on 03.10.2024 followed by a statutory demand notice on 28.10.2024 and a complaint under Section 138 of the NI Act on 02.12.2024 and the applicant came to be summoned on 04.12.2024. Learned counsel for the applicant submits that post enforcement of the BNSS-2023 with effect from 01.07.2024, the provisions of Section 223 would come into play and first proviso to Section 223 BNSS mandates the court below to put to notice and to give opportunity of hearing to the accused at pre-cognizance stage. He submits that no such exercise has been undertaken and the complaint dated 02.12.2024 and the summoning order came to be passed on 04.12.2024. He seeks to rely upon the judgment in Prateek Agarwal Vs. State of U.P. : APPLICATION U/S 482 No. - 10390 of 2024.
5. Learned State Law Officer, on the other hand, submits that once the cheque stood drawn and it was dishonored then the presumption under Section 139 of the NI Act would be there, however, he could not dispute the fact that the complaint was lodged post enforcement of BNSS and the necessary requirement under first proviso to Section 223 of BNSS has not been undertaken. He submits that the 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. Apparently, the complaint stood lodged on 02.12.2024 by the opposite party no. 2 against the applicant under Section 138 of the NI Act and on 04.12.2024 applicant has been summoned. A close reading of the order dated 04.12.2024 shows that the applicant has not been put to notice at pre-cognizance stage which is mandatory requirement in Prateek Agarwal (supra), the following was observed.-
"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."
11. Accordingly, the application is disposed of in the following terms:-
(a) the order dated 04.12.2024 passed by the Special Judicial Magistrate-II, Banda in Complaint Case no. 819 of 2024 is set aside; (b) the matter stands remitted back to the court below to pass a fresh order; (c) for facilitation of early disposal, a copy of the order be submitted before the court below by 25.07.2025.
Order Date :- 15.7.2025
Rajesh
