N.I. Act Is Special Enactment - No Need For Magistrate To Issue Summons To The Accused Before Taking Cognizance: Gauhati High Court

“No Pre-Cognizance Notice Required in Cheque Bounce Cases Under BNSS”, In a significant ruling that clarifies the procedure in cheque dishonour cases under the new criminal code, the Gauhati High Court set aside a Magistrate's order that had directed issuance of notice to the accused before taking cognizance in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The Court held that such a direction is impermissible under the law, particularly in view of the Supreme Court's authoritative interpretation of Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

Justice Manish Choudhury categorically held that the Magistrate had committed a legal error by issuing notice to the accused persons at the pre-cognizance stage, purportedly in compliance with the first proviso to Section 223(1) BNSS.

“The Trial Court has proceeded to issue notice to the accused persons at the pre-cognizance stage in purported adherence to the first proviso to Section 223(1) BNSS. In view of the position of law settled by the Hon’ble Supreme Court... the impugned Order dated 25.09.2025 is set aside and quashed to the aforesaid extent.”

Cheque Bounce Proceedings Do Not Require Pre-Cognizance Notice to Accused

The controversy arose from proceedings in N.I. Case No. 5075/2025, instituted by PD Savera LLP against Galacon Infrastructure and Projects Pvt. Ltd., along with its Director and Additional Director, alleging dishonour of a cheque for ₹10,00,000/-. The complainant had submitted the required deposition-cum-affidavit along with documents, and the Trial Court had observed that a prima facie case existed against the accused persons.

However, instead of taking cognizance, the Magistrate directed that notice be issued to the accused persons to show cause as to why cognizance should not be taken, citing the first proviso to Section 223(1) of the BNSS, 2023.

Justice Choudhury noted that the Magistrate's interpretation of the proviso was flawed, as the Supreme Court has already clarified in Sanjabij Tari v. Kishore S. Borcar & Another, decided on the same day — 25.09.2025, that such notice is not required in cheque dishonour complaints.

“The law has been settled by the Hon’ble Supreme Court… since the N.I. Act is a special enactment, there is no need for the Magistrate to issue summons to the accused before taking cognizance… there shall be no requirement to issue summons to the accused in terms of Section 223 BNSS at the pre-cognizance stage.”

BNSS Cannot Override Procedure in Special Legislation Like the N.I. Act

The High Court highlighted that Section 223(1) of the BNSS requires a hearing before cognizance only in general cases. The Supreme Court in Sanjabij Tari held that this does not apply to cases under the N.I. Act, which is a self-contained special law with a prescribed procedure.

Justice Choudhury underscored that:

“In complaints under Section 138 N.I. Act, there is no requirement of issuing notice or summons to accused persons at the pre-cognizance stage. The application of the first proviso to Section 223(1), BNSS, must be harmonized with the established procedure under the N.I. Act, which does not envisage such a step.”

Revisional Court Exercises Jurisdiction at Motion Stage

Given the purely legal nature of the question involved, the High Court decided the revision at the motion stage itself, dispensing with the requirement of issuing notice to the accused respondents.

“As the position of law is settled by the Supreme Court in the afore-stated manner, the criminal revision petition has been taken up for adjudication at the motion stage itself. For the very same reason, the matter of issuance of notice to the respondent nos. 1, 2 & 3 is found not necessary.”

Accordingly, the order passed by the Judicial Magistrate, First Class, Kamrup (M) dated 25.09.2025, to the extent it directed issuance of notice to the accused before cognizance, was quashed.

Trial Court Directed to Reconsider Cognizance and Issuance of Process Anew

With the impugned portion of the order quashed, the High Court directed the Trial Court to take a fresh decision on the issue of cognizance and issuance of process to the accused persons in accordance with law and the Supreme Court’s binding precedent.

“The learned Trial Court shall now take a fresh decision on the matter of cognizance and issuance of process to the accused persons.”

The petitioner was directed to furnish a certified copy of the judgment to enable the Trial Court to proceed accordingly.

Special Laws Govern Their Own Procedure — BNSS Cannot Be Invoked Mechanically

This judgment reinforces the principle that special enactments like the Negotiable Instruments Act operate independently of general procedural laws, and mechanical application of new procedural codes like BNSS must be avoided where a self-contained mechanism already exists.

Justice Choudhury’s ruling serves as a caution to Magistrates, particularly in the post-BNSS transition period, that procedural innovations under the new Code cannot override or dilute the specific procedural safeguards laid down in special legislations like the N.I. Act.

Date of Decision: January 9, 2026