Ashok S/O Siddappa Bankar vs Fayaz Aahmad S/O Aurangzeb Naikar

Headnote AI-drafted · Reviewed and approved

The petitioner filed a criminal petition under Section 482 of the Cr.P.C. (Section 528 of BNSS) seeking to quash proceedings in CC No. 12253/2024 pending before the I Additional Civil Judge and JMFC Court, Hubballi, for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881, on the ground of non-compliance with the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which mandates that a Magistrate shall not take cognizance of an offence without giving the accused an opportunity of being heard.

The core question considered by the Karnataka High Court, Dharwad Bench, was whether the procedure prescribed under the first proviso to Section 223(1) of the BNSS, 2023 — requiring the Magistrate to hear the accused before taking cognizance — applies to complaints filed for offences under Section 138 of the Negotiable Instruments Act, 1881. The Court noted that this proviso marks a significant departure from the erstwhile Section 200 of the Cr.P.C., 1973, which contained no such requirement.

Reliance was placed on the judgment of the Madurai Bench of the Madras High Court in M/s. Ultimate Computer Care and Another v. M/s. S.M.K. Systems (Criminal OP(MD) No. 19778/2022, decided on 12.02.2025), which held that the Negotiable Instruments Act, 1881, being a special law within the meaning of Section 5 of the BNSS, 2023, the procedure of hearing the accused at the stage of taking cognizance as prescribed in the proviso to Section 223 of the BNSS shall not apply to complaints under Section 138 of the N.I. Act, 1881.

Catchwords: Negotiable Instruments Act Section 138 · dishonour of cheque · Bharatiya Nagarik Suraksha Sanhita 2023 Section 223 · opportunity of hearing accused before cognizance · special law · saving clause · Section 5 BNSS · quashing of proceedings · Cr.P.C. Section 200 · criminal petition · Karnataka High Court Dharwad Bench