Jammu & Kashmir High Court

Mohd Afzal Beigh vs Noor Hussain S/O Late Gulam Ali R/O on 2 May, 2025

                                                                     Sr. No. 94

          HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                          AT JAMMU

                                               CRM(M) No. 374/2025
                                               CrlM No. 742/2025

Mohd Afzal Beigh, age 45 years S/o
Abdul Rashid Beigh, R/o Poonch
Colony, Bahu Fort, Jammu.                                         .....Petitioner(s)

                       Through: Mr. M Nadeem Bhat, Advocate

                 Vs

Noor Hussain S/o Late Gulam Ali R/o
Village Sigdi, Tehsil Mughal Maidan,
A/p H.No. 124, Ward No.9, Asrarabad,
Tehsil and District Kishtwar                                    ..... Respondent(s)
                      Through:

Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE

                                 JUDGMENT

02.05.2025

(ORAL)

1. In the facts and circumstances of the case and having regard to the issue

involved, this Court is of the considered opinion that the matter can be

disposed of even at this threshold stage without notice to the other side.

2. The matter is, accordingly, taken up for final disposal.

3. Through the medium of the instant petition having been filed under the

provisions of Section 528 of Bharatiya Nagrik Suraksha Sanhita 2023 (for

short BNSS), the petitioner has sought quashment of the order dated

27.03.2025 passed by the Court of learned Judicial Magistrate (Munsiff),

Kishtwar on a complaint filed by the respondent against the former under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred

to as „the Act‟ for short) and titled as 'Noor Hussain vs Mohd Afzal' Beigh,

as also of the issuance of non-bailable warrant of arrest through a

subsequent order dated 15.04.2025, on the main ground that the learned

Magistrate while directing the issuance of pre-cognizance notice through

the order impugned dated 27.03.2025 and of the non-bailable warrant of

arrest through a subsequent order dated 15.04.2025, has acted in

contravention of the procedure established for the trial of a complaint under

the provisions the Act.

4. It is submitted by the learned counsel that a complaint under Section 138 of

the Act, is required to be dealt with strictly under the provisions of the Act,

more specially, contained under Section 142. He submitted that issuance of

pre-cognizance notice and the subsequent non-bailable warrant of arrest by

the learned trial Magistrate is unwarranted under law governing a

complaint filed under Section 138 of the Act. He submitted that the

Magistrate while taking cognizance on a complaint under Section 138 of

the Act has to satisfy whether the conditions as laid down in the proviso to

Sections 138 and under Section 142 of the Act stand complied with thereby

justifying a cause of action to the complainant/payee to file a complaint. As

according to the learned counsel, the Magistrate while dealing with the

complaint under Section 138 of the Act is not bound by the requirements

that are needed to be completed, in case of a complaint filed under Section

223 BNSS. Learned counsel submitted that Section 142 of the Act

providing for taking of cognizance of an offence under Section 138 of the

Act starts with a "Non-obstante" clause thereby ruling out the strict

application of the provisions of Section 223 of the BNSS.

5. Admittedly, Section 142 of the Act which gives the powers to a Judicial

Magistrate to take cognizance of an offence punishable under Section 138

of the Act starts with "Non obstante" clause. A clear understanding of the

provisions of Section 142 of the Act makes it clear that a Court of Judicial

Magistrate 1st Class or a Metropolitan Magistrate can take cognizance of an

offence punishable under Section 138 of the Act only upon a complaint

made in writing by the payee or as the case may be the holder in due course

of the cheque. The provisions further provide that such a complaint has to

be made within one month of the date on which the cause of action arises

under clause (c) of the proviso to Section 138 of the Act. Clause (2) of the

Section 142 of the Act lays down as to which Court is vested with the

jurisdiction to inquire into and to try an offence under Section 138 of the

Act.

It is profitable to reproduce the provisions of Section 142 of the Act

for the sake of convenience.

"Section 142 in The Negotiable Instruments Act, 1881

142. Cognizance of offences.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:

Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,--

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation:- For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account."

6. Starting "Non obstante" clause of Section 142 of the Act actually bars the

taking of the cognizance of an offence under Section 138 of the Act except

upon a complaint in writing made by the payee or as the case may be the

holder in due course of the cheque. Thus, taking of cognizance of an

offence under Section 138 of the Act, otherwise than on a complaint in

writing viz on a police report under Section 193 BNSS corresponding to

Section 173 of the repealed Code of Criminal Procedure 1973 (hereinafter

referred to as the „Code‟ for short) is only barred by the "Non obstante"

clause of Section 142 of the Act. A payee of the cheque or the holder in due

course of the same cannot upon dishonour of the cheque by the concerned

banker, approach the police concerned for lodging the FIR.

Section 142 of the Act or any other provision of the Chapter (xvii)

of the Act does not bar the satisfaction in terms of the requirements as

mentioned under Section 223 BNSS corresponding to Section 200 of the

Code viz examination upon oath of the complainant/payee/holder of the

cheque and the witnesses present as also of the issuance of the pre-

cognizance notice. Such requirements are mandatory in respect of the

complaints filed before the criminal Courts for taking cognizance on penal

offences especially covered under BNS (corresponding to repealed IPC).

Since, the remedy for an offence under Section 138 of the Act is a

complaint, as referred to under Section 142 of the Act, therefore, the

observance of the requirements as mentioned under Section 223 BNSS

regarding examination of the complainant/payee and the witnesses present

on oath as also the issuance of the pre-cognizance notice introduced by the

new legislation, is not at all barred but desired in respect of a complaint

filed under Section 138 of the Act. The affidavit statements of the

complainant as well as of the witnesses present can also suffice.

7. Likewise, the "Non obstante" clause appearing in Section 143 of the Act

under the foregoing provisions of the clause (1) mandates the summary

trials as per the provisions of Section 285 to 288 BNSS (corresponding to

Sections 262 to 265 of the Code) in respect of the complaints filed under

Section 138 of the Act notwithstanding the applicable procedure as

warranted for summons trial cases, from the view point of the quantum of

punishment provided for an offence under Section 138 of the Act, which is

imprisonment for a term, which may extend to two years or with fine,

which may extend to the twice the amount of cheque or with both.

However, the subsequent proviso clauses of Section 143 of the Act

clearly reveal that, if at the commencement of or in the course of a

summary trial under Section 143 of the Act, it appears to the Magistrate

that the nature of case is such that a sentence of imprisonment for a term

exceeding one year may have to be passed or that it is for any other reason,

not desired to try the case summary, the Magistrate shall after hearing the

parties, record an order to that effect and thereafter recall any witnesses

who may have been examined and proceed to hear or rehear the case in the

manner provided by the said Code (BNSS now). The provisions of Section

143 of the Act also provide for expeditious trial of any offence under

Chapter (xvii) of the Act.

It is profitable to reproduce the Section 143 of the Act for ready

reference as under:-

"Section 143 in The Negotiable Instruments Act, 1881

143. Power of Court to try cases summarily.--

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint."

8. It is understood that the Magistrates while being seized of the complaints,

under Section 138 of the Act may feel themselves under a dilemma in

respect of the procedure to be adopted on such complaints. A logical

interpretation of the provisions of Section 143 of the Act especially as

covered under the provisos makes it clear that a competent Court of a

Judicial Magistrate/Metropolitan Magistrate, is within its powers to choose

just at the beginning to proceed on the matter in the manner as provided for

trial of summons cases under BNSS and he is not required first to

commence a summary trial but the only requirement is that the Court shall

record an order regarding its such satisfaction. The adoption of procedure

warranted for summons trial cases under BNSS appears to be desired as

well as convenient as compared to summary trial procedure.

9. In view of the Section 142 of the Act, every offence punishable under the

Act shall be compoundable notwithstanding anything contained in the

BNSS. The proviso to Section 147 of the Act provides for extension of

time in filing the complaint beyond the period upon satisfaction of the

Court by the complainant that he had sufficient cause for not making the

complaint within the prescribed period. The maintainability of a complaint

under Section 138 of the Act is to be addressed by a competent Court in the

light of the relevant provisions of the said Section and of the Section 142 of

the Act. A Magistrate hearing a complaint under Section 138 of the Act,

may under some circumstances, need to have recourse to any applicable

provisions of Chapter (xxi) of the BNSS relating to the trial of summons

cases by the Magistrates, for example, Sections 279 & 280 of the Sanhita

regarding non-appearance or death of a complainant and withdrawal of the

complaint, which is not barred.

10. Section 223 BNSS provides for issuance of pre-cognizance notice to the

accused and said provision was not available in the corresponding Section

200 of the repealed Code. Such requirement provided under Section 223 of

the BNSS by way of proviso appear to be justice orientated as the same

takes care of any legitimate defence of the accused to be appreciated by the

Magistrate even at an earliest, while holding a preliminary inquiry and is

not barred at all even in respect of complaints under N.I.Act as hereinabove

discussed. However, the non-observance of the requirements, provided

under Section 223 BNSS, regarding the examination on oath of the

complainant/witnesses and the issuance of the pre-cognizance notice shall

not render the proceedings invalid.

11. The satisfaction of the competent Court, as regards the maintainability of

the complaint, in terms of the accrual of cause of action, is covered under

the "inquiry phase," preceding the "taking of cognizance". A Magistrate

while entertaining a complaint under Section 138 of the Negotiable

Instruments Act is not barred to have the observance of the provisions

providing for pre-cognizance notice.

12. So far as the case in hand is concerned, the learned Magistrate upon

satisfying himself regarding to record the service of pre-cognizance notice

could have inferred, the forfeiture of the right of hearing by the accused at

pre-cognizance stage of the complaint and proceeded ahead on the

complaint in accordance with law. There was no need for the Magistrate to

compel the appearance of the accused by issuance of a subsequent non-

bailable warrant as the pre-cognizance hearing was meant for him which he

acquiesced. The Magistrate is within its powers to compel the attendance of

the accused after taking cognizance on the complaint and even under such

circumstances, the normal approach of the Magistrates should be issuance

of summon followed by a bailable warrant if needed and the issuance of the

non-bailable warrants should be the last option.

13. Accordingly, the instant petition is disposed of by setting aside the

impugned order dated 15.04.2025 regarding issuance of non-bailable

warrant of arrest, however, with the direction to the petitioner/accused to

appear before the trial Magistrate on the date of hearing that falls next after

the uploading of this order, for his participation in the proceedings. It is

needless to mention that if the Magistrate is yet to take cognizance on the

complaint, the accused is still entitled to pre-cognizance hearing.

14. Before parting, it is needful to mention that provisions of Chapter (xvii) of

the Negotiable Instruments Act, 1881 have been legislated by the

parliament to facilitate smooth functioning of business transactions. The

provisions were necessitated as in money transactions cheques were issued

merely as a device to defraud the creditors. Dishonor of cheques causes

incalculable loss, injury and inconvenience to the payee and credibility of

business transactions suffers a setback. An offence under Section 138 of

the N I Act relates to a civil wrong and as such the offence has been made

compoundable. The Act is intended to legalize the system by which

instruments contemplated by it could pass from hand to hand in the process

of negotiation like any other commodities. The complaints under Sections

138 and 141 of the Negotiable Instruments Act need to be treated as

priority sector litigation and tried expeditiously as per the mandate of the

Act. The competent jurisdictional Courts are expected to make every

endeavor that the cheque bounce cases are disposed of expeditiously in

furtherance of which object, Alternate Dispute Resolution Mechanism

provided under the Legal Services Authorities Act needs to be tried for

such cases through the modes of Lok Adalat and Mediation etc, however,

without any element of unnecessary delay on that pretext.

15. A copy of this order be forwarded to the learned Registrar General of this

Court with a request for its circulation among the Judicial Magistrates

working in the District Judiciary in the Union Territories of the Jammu and

Kashmir/Ladakh.

(Mohd. Yousuf Wani) Judge Jammu 02.05.2025 Vijay Whether the order is speaking: Yes Whether the order is reportable: Yes