Full Text
HIGH COURT OF DELHI
Date of Decision: 7th August, 2025
PANI RAM
S/o Shri Gushai Ram R/o H. No. 8, 2nd Floor, Type-3, Shahdra, Vivek Vihar, East-Delhi, Delhi 110095 …..Petitioner
Through: Mr. Rajat Wadhwa, Mr. Harsh Prabhakar, Mr. Dhruv Chaudhry, Mr. Gurpreet Singh & Mr. Manish Kumar, Advocates
S/o Shri V.D. Joshi R/o D-55, Sector-47
NOIDA, Uttar Pradesh …..Respondent
Through: Mr. Vijay Waghey, Mr. Ankush M.
Kumar and Ms. Divya Singh, Advocates.
JUDGMENT
1. The present Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as „B.N.S.S.‟) (Section 482 of the Code of Criminal Procedure, 1973) has been filed on behalf of the Petitioner/Pani Ram to challenge the Order dated 02.08.2024 in CC NO. 6260/2024 by learned Judicial Magistrate, New Delhi vide which the cognizance has been taken in the Complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as „N.I. Act‟) and the matter has been listed for pre-summoning evidence.
2. It is submitted in the Petition that a Complaint under Section 138 of N.I. Act has been filed by Mr. Mohan Lal Joshi, the Complainant, against the Petitioner/Accused in regard to the dishonour of cheques.The learned JMFC has taken cognizance and fixed the matter for pre-summoning Order.
3. Aggrieved by the said Order, the present Petition has been filed. The grounds of challenge are that the Notice has been issued to the proposed Accused, in terms of Section 223 of B.N.S.S., without application of mind and before examining the Complainant and its witnesses on Oath. The learned Trial Court has acted in undue haste as it was pre-mature to direct the issuance of Notice.
4. Reliance has been placed on Suby Antony vs. Judicial First Class Magistrate-III & Ors., (2025) SCC OnLine Ker 532 and Basanagouda R. Patil vs. Shivananda S. Patil, 2024 SCC OnLine Kar 96 wherein it has been held that once a Complaint is presented, it is the duty of the Magistrate to examine the Complainant and the witnesses present, if any, on Oath. The question of taking cognizance does not arise at this juncture. The Magistrate has to, in terms of the proviso, issue a Notice to the Accused, who must be given an opportunity of being heard before taking cognizance.
5. Reliance is also placed on Sant Lal Gupta vs. Modern Coop. Group Housing Society Ltd., (2010) 13 SCC 336 wherein it has been pointed out that the judicial Orders must indicate the reasons which is the fundamental principle of natural justice.
6. Reliance has also been placed on Nazir Ahmad vs. King Emperor, 1936 SCC OnLine PC 41, which states that when the power is conferred to be exercised in a certain way, the thing must be done in that way and not otherwise.
7. Reliance has also been placed on Mohit Juneja vs. State Govt. of NCT of Delhi and Anr., CRL.M.C. 1777/2025 wherein the Co-ordinate Bench of this Court vide Order dated 17.03.2025 in similar circumstances, stayed the proceedings before the learned Trial Court.
8. A prayer is thus, made that the Order dated 02.08.2024 be set-aside.
9. Submissions heard and the record perused.
10. The Petitioner is aggrieved by the Order dated 02.08.2024 on the ground that the Accused has been summoned, without the application of mind and in contravention of the provisions of B.N.S.S. To appreciate this contention, it would be appropriate to reproduce the relevant part of the Order, which is as under: “The matter is at the stage of consideration. Since the present complaint has been filed on or after 01.07.2024 i.e. the date of enforcement of BNSS 2023, in terms of sec 531 of the BNSS 2023, the proceedings for the present case has to be taken in terms of BNSS 2023. Accordingly, in view of sec 223 proviso of BNSS2023, which provides for mandatory issuance of notice to the accused before taking cognizance of offence upon a complaint, let Court Notice along with the copy of the complaint be issued to the proposed accused upon filing of PF/Speed Post/RC for 04.11.2024. The Complainant is further directed to place on record the tracking report of Speed Post/ Registered AD on the next date of hearing without fail. Put for further proceedings for 04.11.2024.”
11. First and foremost, the grievance of the Petitioner is that he has been summoned in contravention of Section 223 of B.N.S.S, which mandatorily requires that a Notice be issued to the Accused before taking cognizance on a Complaint. The fundamental premise on which the present Petition is based, is without any basis for the perusal of the Order shows that no Summons have been directed to be issued to the Petitioner. What the ld. JMFC has done is, taken the cognizance on the Complaint under Section 138 of N.I. Act and has listed the matter for recording of pre-summoning evidence.
12. The main grievance of the Petitioner is that Notice has been issued to the Petitioner, in terms of Proviso to Section 223 of B.N.S.S., 2023, without first recording the pre-summoning evidence.
13. In order to appreciate this contention, it is pertinent to understand the procedure required to be followed in case of a Complaint under Section 138 of N.I. Act, as has also been explained in the decision of Full Bench of the Supreme Court of India in A.C. Narayanan vs. State of Maharashtra and Another, (2014) 11 SCC 790 after analysing the provisions of the N.I Act and Section 200 Cr.P.C. It was observed that from the conjoint reading of Section 138, 142 and 145 of the N.I. Act, as well as, Section 200 Cr.P.C, it is clear that the Magistrate may issue process on the basis of the contents of the Complaint, documents in support thereof and the Affidavit submitted in support of the Complaint. Once the Complainant files an Affidavit in support of the Complaint before the issuance of process under Section 200 Cr.P.C, it is open to the Magistrate, if he thinks fit, to call upon the Complainant to remain present and to examine the Complainant as to the facts contained in the Affidavit submitted by the Complainant in support of his Complaint. However, it is a matter of discretion and the Magistrate is not bound to examine the Complainant on oath before taking a decision to whether or not to issue process under Section 138 of N.I. Act. For the purpose of Section 200 Cr.P.C, it is open to the Magistrate to rely upon the verification in the form of Affidavit filed by the Complainant in support of Complaint under section 138 of N.I. Act.
14. It is only if and where the Magistrate, after considering the Complaint under Section 138 of N.I. Act, documents produced in support thereof and the verification in the form of Affidavit of the Complainant, is of the view that the examination of the Complainant or the witness(es) is required, the Magistrate may call upon the Complainant to do so for taking a decision whether or not to issue process on the Complaint under Section 138 of N.I. Act.
15. The reasons why the Affidavit filed along with the Complaint under Section 138 of N.I. Act, is given a status of evidence, is evident from Section 145 of N.I. Act, which reads as under:-
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”
16. In the Case of A.C. Narayanan (supra), it was noted that Section 145 of N.I. Act expressly permits the Complainant to tender the evidence by way of Affidavit and the Court can proceed on such material. The N.I. Act thus, carves out a procedural departure from the general requirement under Section 200 Cr.P.C. (now Section 223 B.N.S.S.), recognising the Affidavit as a valid substitute for oral examination at the pre-cognizance stage.
17. In this context, it is also relevant to refer to A.R. Antulay vs. Ramdas Sriniwas Nayak, (1984) 2 SCC 500 wherein the procedures to be followed by a Magistrate in a private Complaint, were discussed in detail. It was observed that when a private Complaint is filed, the Court is required to examine the Complainant on oath save as set out in the proviso to section 200 Cr.P.C.
18. After examining the Complainant and the witnesses present on oath, it is open to the Court to judicially determine whether the case is made out for issuing the process. The Court in order to be doubly sure may direct investigations to be made by a Polic Officer under Section 202 Cr.P.C. The prayer to take cognizance without holding any enquiry or directing the investigations is implicit in Section 202 Cr.P.C. Therefore, the matter is left to the judicial discretion of the Court whether on examining the Complainant and the witnesses to issue process or to postpone it for further investigations, in terms of Section 202 Cr.P.C.
19. Section 223 B.N.S.S. is identical to the procedural framework provided in Section 200 Cr.P.C with the only exception that before taking cognizance, Notice must be issued to the proposed Accused to give him an opportunity to defend himself before the Cognizance is taken.
20. As has already been discussed above, in a Complaint under Section 138 of N.I. Act the Magistrate may, in his discretion, proceed on the basis of Complaint, supporting documents and the Affidavit of the Complainant, without necessarily examining the Complainant or the witnesses on oath prior to issuing the process. In the present case as well, the learned Magistrate had in the impugned Order dated 02.08.2024, before taking Cognizance in terms of proviso to Section 223 B.N.S.S, had directed issuance of the Notice to the Petitioner.
21. Insofar as the grievance for not recording of pre-summoning evidence is concerned, it is met by the filing of the Affidavit by the Complainant along with the Complaint under Section 138 of N.I. Act.
22. Identical Summoning Order came up for consideration before the Coordinate Bench in the case of Neeti Sharma vs. Saranjit Singh, 2025 DHC 2367 wherein it was held that there is no requirement of recording the statement of the Complainant and/or the witnesses on oath, prior to issuing a Notice for taking Cognizance as that is sufficiently satisfied by the documents and the Affidavit filed by the Complainant in support of the Complaint under Section 138 of N.I. Act.
23. The learned Trial Court has duly followed the procedure in its Order dated 02.08.2024 wherein before taking Cognizance, the Notice has been given to the Petitioner.
24. During the course of the arguments, a reference has been given to the subsequent Order dated 02.04.2025 where the Court after taking Cognizance under Section 138 of N.I. Act, has listed the matter for recording of presummoning evidence.
25. However, in the light of the aforesaid discussion, it is evident that no pre-summoning evidence is required after taking cognizance because of the circumstances discussed above. Conclusion:
26. There is no infirmity in the impugned Order dated 02.08.2024. There is no merit in the Petition, which is hereby dismissed.
27. The Petition is disposed of accordingly. Pending Application, if any, also stands disposed of.
(NEENA BANSAL KRISHNA) JUDGE