Krishna Road Transport vs State Of U.P. And Another
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Allahabad High Court

Krishna Road Transport vs State Of U.P. And Another on 23 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:121577
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 26077 of 2025
 

 
Applicant :- Krishna Road Transport
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Jay Prakash Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1. Heard Sri Sunil Kumar (AOR No. A/S 1548/12) holding brief of Sri Jay Prakash Gupta, learned counsel for the applicant and Sri Indra Jeet Yadav, learned AGA for the State.

2. In view of the order, which is being proposed to be passed, notices are not being issued to O.P. No. 2.

3. This is an application filed U/s 528 BNSS for quashing the impugned summoning order dated 29.10.2024 passed by Judicial Magistrate, court no.2 Kanpur Dehat in complaint case no. 32840 of 2024 (Narmadeshwar Filling Station vs. Krishna Road Transport) U/s 138 of N.I. Act, P.S. Bilhaur, District Kanpur Nagar.

4. The case of the applicant is that a complaint was lodged on 19.10.2024 by opposite party no.2 against the applicant U/s 138 of N.I. Act with an allegation that applicant herein with respect to discharge of his liability had drawn a cheque of Rs. 30 lacs in favour of opposite party no.2 on 15.06.2024 bearing no. 000321 which on presentation in the bank came to be dishonoured on 17.09.2024. Thereafter on 20.09.2024 a statutory demand notice was issued followed by the complaint U/s 138 of N.I. Act on 19.10.2024 pursuant whereto the applicant came to be summoned on 29.10.2024 U/s 138 of N.I. Act

5. Learned counsel for the applicant has submitted that the summoning order cannot be sustained particularly when in view of the first proviso of Section 223 of BNSS the applicant ought to have been put to notice at a 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. He submits that the summoning order be set aside and the matter is remitted back to the court below to pass a fresh order.

6. Learned AGA on the other hand submits that though it is not forthcoming from the summoning order that the applicant was put to notice at pre-cognizance stage. However, he submits that the summoning order be set aside and the matter be remitted back to Court below to pass fresh orders.

7. I have heard learned counsel for the parties and gone through the records carefully.

8. 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."

9. The BNSS 2023 came into operation with effect from 01.07.2024 and here the complaint U/s 138 of N.I. Act came to be filed on 19.10.2024. Thus in view of the provisions contained under first proviso of section 223 BNSS, the court was under obligation put to notice and to hear the applicant accused before taking cognizance. In the case of Prateek Agarwal (Supra) a coordinate bench of this Court observed as under:

"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."

10. Since the aforesaid exercise is completely lacking and the applicant has not been put to notice as asserted by him in para nos. 12 of the applicant and it is also not forthcoming from the summoning order. Thus, the summoning order cannot be sustained. Accordingly the application is disposed of in the following terms.

(a) The summoning order dated 29.10.2024 passed in complaint case no. 32840 of 2024 (Narmadeshwar Filling Station vs. Krishna Road Transport) U/s 138 of N.I. Act passed by CJM, court no.2 Kanpur Dehat is set aside.

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

11. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 31.07.2025 and the court below shall proceed to decide the said proceeding with most expedition.

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

Order Date :- 23.7.2025

C. MANI

(Vikas Budhwar,J.)