Section 138 NI Act | No Requirement To Hear Accused At Pre-Cognizance Stage Under Section 223 BNSS: Punjab & Haryana High Court

"The procedure of hearing the accused at the stage of taking cognizance as prescribed in the first proviso to Section 223 of BNSS shall not apply to the complaints for offence under Section 138 of NI Act." Punjab and Haryana High Court, in a significant ruling, has clarified that the pre-cognizance hearing requirement for accused persons under the first proviso to Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) is inapplicable to proceedings under the Negotiable Instruments Act (NI Act).

A bench of Justice Jasjit Singh Bedi held that the NI Act operates as a special enactment, and given its unique statutory framework, strict adherence to the general procedure for hearing the accused before taking cognizance is not mandated.

Clarifying the interplay of Special Law and BNSS

The petition challenged a summoning order in a cheque bounce case on the grounds that the trial court failed to conduct a proper inquiry under Section 225 BNSS (formerly Section 202 CrPC) and bypassed the procedural requirements of Section 223 BNSS. The petitioner argued that the trial court’s failure to grant a pre-cognizance hearing rendered the summoning order unsustainable.

Legal Issues before the Court

The primary question before the court was whether the proviso to Section 223 of the BNSS, which mandates hearing the accused before taking cognizance of an offence, applies to complaints filed under Section 138 of the NI Act. Additionally, the court examined whether the trial court sufficiently complied with the requirements of an inquiry under Section 225 BNSS.

Special Law Prevails Over General Procedure

The court underscored that the NI Act is a special statute designed for the swift resolution of commercial disputes involving dishonoured cheques. Relying on the Supreme Court’s observations in Sanjabij Tari v. Kishore S. Borcar, the High Court held that the NI Act constitutes a "special law" within the meaning of Section 5 of the BNSS. Consequently, general provisions of the BNSS that conflict with the specialized, summary nature of the NI Act must yield.

Court Rejects Need for Pre-Cognizance Hearing

The bench emphasized that the purpose of Section 138 is to ensure the credibility of cheques as a trustworthy substitute for cash. The procedural hurdle of hearing an accused before taking cognizance would frustrate the legislature’s intent of expeditious disposal. Citing the Karnataka High Court’s ruling in Ashok v. Fayaz Aahmad, the court affirmed that the Magistrate is not bound to provide an opportunity of being heard to the accused at the threshold stage under Section 223 BNSS.

Compliance with Inquiry Requirements

Regarding the inquiry mandated under Section 225 BNSS, the High Court held that the Magistrate is not obligated to insist on the oral examination of witnesses. The court observed that the Magistrate may fulfill the inquiry requirement by examining the documents and affidavits submitted by the complainant. The bench noted that as long as the record reflects sufficient application of mind to the materials provided, the inquiry requirement is deemed satisfied.

"The impugned summoning order would, therefore, reveal sufficient application of mind so as to amount to an enquiry under Section 225 BNSS as envisaged by the Hon’ble Supreme Court."

The court concluded that the trial court had duly applied its mind to the evidence and documents on record, thereby satisfying the requisite legal standards for issuing process. Finding no procedural infirmity in the impugned summoning order, the court dismissed the petition, reinforcing that the specialized procedures of the NI Act remain distinct and streamlined.

Date of Decision: 08 September 2026