Not Required To Hear Accused While Taking Cognisance U/S 223 Of BNSS For Complaints Made Under NI Act: Karnataka HC

The Karnataka HIgh Court has said that the procedure of hearing the accused at the stage of taking cognizance of the complaint as prescribed in the first proviso to Section 223 of BNSS shall not apply to the complaints for offence made under Section 138 of Negotiable Instruments Act.

For context, Section 223 of BNSS makes a departure from the earlier provision contained in Section 200 Cr.P.C. Under the proviso to Sub-Section (1) of 223, the Magistrate cannot take cognizance of an offence, without giving the accused an opportunity of being heard.

A single judge, Justice Shivashankar Amarannavar held thus while dismissing a petition filed by one Ashok who had approached the court questioning the cognizance order taken by the Magistrate court on the complaint filed by one Fayaz Aahmad without issuing him a notice for hearing.

The court said “Since Negotiable Instrument Act, 1881 is special enactment and in view of Section 5 of BNSS r/w. Section 143 of NI Act as far as the cases tried by the learned Magistrates under Section 138 of NI Act, there is no need for the Magistrate to give an opportunity of being heard to the accused before taking cognizance on the complaint of payee/holder in due course of cheque for offence punishable under Section 138 of NI Act.”

The bench referred to Apex court judgment in the case of Suresh Nanda Vs CBI, 2008(3) SCC 674, wherein it observed that the Passport Act is a Special Law whereas Cr.P.C is a General Law. It is well settled that the special law prevails over General Law.

The bench then noted the procedure to be followed by the Magistrate for disposal of a complaint filed under Section 138 of the Negotiable Instruments Act. It also refused to accept the coordinate bench judgment Hanumesh S/o. Sharanappa Karanagi Vs. M/s.Karanagi Brothers Enterprise in Criminal Petition No.201604/2024 decided on 11.02.2025, wherein the court held that before taking cognizance of offence under Section 138 of NI Act, the Magistrate shall comply the requirement of Section 223 of BNSS.

It said “In the said case, the Court has not considered that the Negotiable Instrument Act is a special statute and procedure provided for offence punishable under Section 138 of NI Act for trial is a summary procedure and Section 5 of BNSS.”

Accordingly it dismissed the petition.

Appearance: Advocate Saiyad D Mulla for Petitioner.

Advocates G.V Bharamagoudar, Bhagyshree N Bikkannavar for Respondent.

Citation No: 2025 LiveLaw (Kar) 172

Case Title: Ashok AND Fayaz Aahmad

Case No: CRIMINAL PETITION NO.101514 OF 2025

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