Case Note & Summary
The petitioners challenged the order of taking cognizance in a cheque dishonour case under Section 138 of Negotiable Instruments Act, 1881, contending that the Magistrate violated mandatory procedure under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) by not issuing notice to accused and hearing them before taking cognizance. The High Court examined Sections 4, 5, 223 and 531 of BNSS, 2023 and held that Section 5 contains a savings clause that preserves special procedures under other laws. Since Negotiable Instruments Act, 1881 is a special statute with its own procedure for taking cognizance, the general procedure under BNSS, 2023 does not apply. The Court distinguished between mandatory and directory provisions, finding that the proviso to Section 223 of BNSS, 2023 is not mandatory for special statutes. The petition was dismissed
Headnote
Criminal Law-- Code of criminal Procedure, 1973-- Section 200-- Negotiable Instruments Act, 1881-- Sections 138, 142, 143-- BNSS, 2023-- Sections 4, 5, 223 and 531 -- Complaint u/s 138 of NI Act filed by respondent/complainant-- Petitioners were original accused in the complaint-- Ld. Magistrate took cognizance and issued process to the petitioners/accused-- Order of taking cognizance challenged by the petitioners/accsued in revision before high court-- Rejection of revision-- Aggrieved-- Challenged-- Contention as to no opportunity of hearing afforded to the petitioners before taking cognizance-- Provisions of Sections 4, 5 and 223 of BNSS referred-- Examination of complainant u/s 200 of CRPC-- Provisions of Section 200 of CRPC as to examination of complainant replaces in Section 223 of BNSS-- Cases of different high courts referred-- Power of court to try cases summarily u/s 143 of NI Act-- No requirement of issuing summons to the accused u/s 223 of BNSS at the pre-cognizance stage-- No warrant of following the procedure u/s 223 of BNSS for a summary trial for offence u/s 143 of NI Act-- No need to hear accused before taking cognizance-- No intereference-- Petition rejected
Para-- 6, 7, 8, 8.4, 9, 10
Issue of Consideration
Whether the procedure prescribed under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) regarding issuance of notice to accused and hearing before taking cognizance is mandatory for offences under Negotiable Instruments Act, 1881
Final Decision
The High Court dismissed the criminal petition -- The Court upheld the orders of the Magistrate and revisional Court taking cognizance --
Law Points
- Interpretation of Bharatiya Nagarik Suraksha Sanhita
- 2023 (BNSS) provisions
- Application of special statutes versus general criminal procedure
- Procedure for taking cognizance under Negotiable Instruments Act
- 1881
- Mandatory versus directory provisions in criminal procedure
- Savings clause under Section 5 of BNSS
- 2023
Case Details
2026 LawText (KAR) (01) 32
Criminal Petition No. 54 of 2026
Mudra Developers, Mr. Vasudev K., Deepa K.S.
M/s. Aashirvad Infra Developers, Mr. P. Krishnaraj Mayya
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Nature of Litigation
Criminal petition challenging order of taking cognizance in cheque dishonour case
Remedy Sought
Petitioners seeking to set aside order dated 04.12.2025 passed in Criminal Revision Petition No.71/2025 and quash cognizance order
Filing Reason
Alleged violation of mandatory procedure under Section 223 of BNSS, 2023 by Magistrate in taking cognizance without issuing notice to accused
Previous Decisions
Judicial Magistrate First Class took cognizance on 26.09.2024 and registered C.C.No.1310/2024 -- III Additional District and Sessions Judge dismissed revision petition on 04.12.2025
Issues
Whether the procedure under Section 223 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) regarding notice to accused before cognizance is mandatory for offences under Negotiable Instruments Act, 1881
Whether the savings clause under Section 5 of BNSS, 2023 preserves special procedures under other laws
Submissions/Arguments
Petitioners contended that Section 223 of BNSS, 2023 mandates issuance of notice to accused and hearing before taking cognizance -- Petitioners argued that deviation from this procedure vitiates cognizance order -- Petitioners relied on Section 4 of BNSS, 2023 to argue that procedure cannot be deviated -- Petitioners submitted that since Negotiable Instruments Act, 1881 has no specific procedure for cognizance, BNSS provisions apply
Ratio Decidendi
Section 5 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) contains a savings clause that preserves special procedures under other laws -- Negotiable Instruments Act, 1881 being a special statute, its procedure for taking cognizance prevails over general procedure under BNSS -- The proviso to Section 223 of BNSS regarding notice to accused before cognizance is not mandatory for special statutes -- The Court distinguished between mandatory and directory provisions in criminal procedure
Judgment Excerpts
The Court held that 'Section 5 of BNSS contains a savings clause that nothing contained in BNSS shall affect any special law or special form of procedure prescribed by any other law' -- The Court observed that 'Negotiable Instruments Act, 1881 is a special statute and the procedure prescribed thereunder would prevail over the general procedure under BNSS' -- The Court stated that 'the proviso to Section 223 of BNSS regarding notice to accused before cognizance is directory and not mandatory when it comes to special statutes'
Procedural History
Cheque for ₹10 lakhs issued by petitioners returned unpaid with 'stopped payment' memo -- Complainants initiated proceedings under Section 138 of Negotiable Instruments Act, 1881 -- Judicial Magistrate First Class took cognizance on 26.09.2024 and registered C.C.No.1310/2024 -- Petitioners filed criminal revision petition before Sessions Court -- III Additional District and Sessions Judge dismissed revision on 04.12.2025 -- Petitioners filed criminal petition before High Court under Section 528 of BNSS, 2023
Acts & Sections
- Bharatiya Nagarik Suraksha Sanhita, 2023: Section 4, Section 5, Section 223, Section 531
- Negotiable Instruments Act, 1881: Section 138
