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2025 SCC OnLine Del 2329

In the High Court of Delhi at New Delhi

(BEFORE SANJEEV NARULA, J.)

Neeti Sharma … Petitioner;

Versus
Saranjit Singh … Respondent.
Crl.M.C. 2202/2025
Decided on April 2, 2025
Advocates who appeared in this case:
Mr. Rajat Wadhwa, Mr. Dhruv Choudhary, Mr. Gurpreet Singh, Ms.
Anisha Rastogi, Mr. Manish Kumar, Advocates
Mr. Laksh Khanna, APP for the State.
The Judgment of the Court was delivered by
SANJEEV NARULA, J. (Oral):—
CRL.M.A. 9851/2025 (Exemption)
1. Exemption is granted, subject to all just exceptions.
2. The Petitioner shall file legible and clearer copies of exempted
documents, compliant with practice rules, before the next date of
hearing.
3. Accordingly, the application stands disposed of.
CRL.M.C. 2202/2025 & CRL.M.A. 9850/2025 (for stay)
4. The present petition under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 20231 (formerly Section 482 of the Criminal
2 th 3
Procedure Code, 1973 ) challenges order dated 15 January, 2025,
passed in CC NI Act No. 186/2025 titled as Saranjit Singh v. Neeti
Sharma, whereby the Petitioner has been served with a notice, under
section 223 of BNSS, giving him an opportunity of hearing in the
aforenoted complaint.
5. Briefly stated, the facts of the case are as follows:
5.1. The cheque allegedly issued by the Petitioner to the Respondent
has been dishonoured on presentation, prompting the Respondent to
institute a complaint for offence under Section 138 of the Negotiable
4
Instruments Act, 1881.
th
5.2. On receiving the above complaint, a notice dated 15 January,
2025, was issued by the Trial Court, to the Petitioner/Proposed Accused
in terms of proviso to Section 223 of BNSS affording an opportunity of
hearing to the Petitioner, prior to taking cognizance of the offence.
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6. Mr. Kapil Wadhwa, counsel for Petitioner, urges the following

grounds to challenge the impugned notice:
6.1. The Trial Court has misdirected itself by issuing notice to
Petitioner as a Proposed Accused, without applying its judicial mind to
the contents of the complaint by first examining the Complainant and
its witnesses on oath or examining the affidavits of the Complainant.
6.2. The Impugned notice is pre-mature and contrary to the scheme
of Section 223(1) of BNSS, which mandates that the complainant must
first be examined, and judicial application of mind must precede the
issuance of notice to any proposed accused. Bypassing this safeguard
renders the process procedurally defective.
6.3. The complaint on the face of it lacks the necessary material
particulars and foundational facts to sustain even a prima facie case
under Section 138 of the NI Act. In such circumstances, the Trial Court
ought to have dismissed the complaint at the threshold without
proceeding to invoke Section 223(1).
6.4. Reliance is placed on the decisions of the High Court of Kerala in
5
Suby Antony v. Judicial First-Class Magistrate-III (Deleted) and
judgment of High Court of Karnataka in Basanagouda R. Patil v.
Shivananda S. Patil6.
6.5. The Impugned order is devoid of any reasoning and is a non-
speaking one. It fails to demonstrate application of judicial mind or
engagement with the procedural safeguards envisaged under Section
223. In support of the requirement of reasoned orders, reliance is
placed on the judgment of the Supreme Court on Sant Lal Gupta v.
Modern Cooperative Group Housing Society Limited7.
7. Although the State was not initially arrayed as a party,
considering the nature of the issue raised and its bearing on the
exercise of criminal jurisdiction, the State is impleaded as a co-
Respondent. Let the amended memo of parties be filed within one week
from today. The Court has accordingly heard Mr. Laksh Khanna,
Additional Public Prosecutor, on the question at hand.
8. The Court has carefully considered the rival contentions and
examined the legal framework relating the challenge to the Impugned
order.
9. The Impugned order reads as under:
“Fresh file received by way of assignment. It be checked and
registered.
Ld. Counsel for the complainant has submitted that the date of
filing in the present matter is 23.12.2024 and the present matter
has been instituted after 01.07.2024 and the cognizance has to be
taken as per BNSS 2023.
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Section 223 of BNSS mandates that before taking cognizance of

offence on a complaint, the accused shall be given an opportunity of
being heard.
Accordingly, issue notice to the proposed accused on filing of PF
returnable on 03.03.2025.”
10. The Petitioner has assailed the above order on the basis of the
interpretation of Section 223 of BNSS, which, being a new provision,
incorporates a procedural safeguard not found in in the corresponding
provision in CrPC. For ready reference, Section 223 of BNSS is extracted
below:
“223. Examination of complainant.
(1) A Magistrate having jurisdiction while taking cognizance of an
offence on complaint shall examine upon oath the complainant
and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by
the complainant and the witnesses, and also by the
Magistrate : Provided that no cognizance of an offence shall be
taken by the Magistrate without giving the accused an
opportunity of being heard:
Provided further that when the complaint is made in writing,
the Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made the
complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 212:
Provided also that if the Magistrate makes over the
case to another Magistrate under section 212 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.
(2) A Magistrate shall not take cognizance on a complaint against
a public servant for any offence alleged to have been
committed in course of the discharge of his official functions or
duties unless-
(a) such public servant is given an opportunity to make
assertions as to the situation that led to the incident so
alleged; and
(b) a report containing facts and circumstances of the incident
from the officer superior to such public servant is received.”
11. In contrast, the corresponding provision in the Criminal
Procedure Code, 1973 (Section 200 CrPC) does not include any
mandate for affording an opportunity of hearing to the accused before
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taking cognizance. Section 200 CrPC is reproduced below for

completeness:
“200. Examination of complainant.
A Magistrate taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses present, if
any, and the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the witnesses,
and also by the Magistrate : Provided that when the complaint is
made in writing, the Magistrate need not examine the complainant
and the witnesses -
(a) if a public servant acting or purporting to act in the discharge
of his official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to
another Magistrate under section 192:
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the latter
Magistrate need not re-examine them.”
12. A comparative reading of the above provisions makes it evident
that under the erstwhile law, no right of pre-cognizance hearing was
envisaged for the proposed accused. This procedural safeguard has now
been expressly incorporated by way of the first proviso to Section 223
(1) BNSS, which mandates that “no cognizance of an offence shall be
taken by the Magistrate without giving the accused an opportunity of
being heard.”
13. In compliance with this statutory requirement, the Magistrate
issued the impugned notice to the Petitioner to provide an opportunity
of hearing prior to taking cognizance.
14. Mr. Wadhwa's challenge to the Impugned notice is primarily
hinged on the submission that the Magistrate erred in issuing notice
without first examining the complainant and any witnesses present, on
oath, as mandated under the main limb of Section 223(1) of BNSS. It
is argued that such examination is a condition precedent and ought to
precede the issuance of notice under the proviso.
15. At this juncture, it must be emphasised that the Court is
presently dealing with an offence under Section 138 of the NI Act.
Consequently, this decision is rendered on the basis of the legal
position as it stands in relation to such offences only. In this regard, it
is instructive to refer to the decision of the Full Bench of the Supreme
8
Court in A.C. Narayanan v. State of Maharashtra wherein the Supreme
Court, after analysing the relevant provisions of NI Act and Section 200
CrPC, observed as under:
“29. From a conjoint reading of Sections 138, 142 and 145 of the
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NI Act as well as Section 200 of the Code, it is clear that it is open to

the Magistrate to issue process on the basis of the contents of the
complaint, documents in support thereof and the affidavit submitted
by the complainant in support of the complaint. Once the
complainant files an affidavit in support of the complaint
before issuance of the process under Section 200 of the Code,
it is thereafter open to the Magistrate, if he thinks fit, to call
upon the complainant to remain present and to examine him
as to the facts contained in the affidavit submitted by the
complainant in support of his complaint. However, it is a
matter of discretion and the Magistrate is not bound to call
upon the complainant to remain present before the court and
to examine him upon oath for taking decision whether or not
to issue process on the complaint under Section 138 of the NI
Act. For the purpose of issuing process under Section 200 of
the Code, it is open to the Magistrate to rely upon the
verification in the form of affidavit filed by the complainant in
support of the complaint under Section 138 of the NI Act. It is
only if and where the Magistrate, after considering the
complaint under Section 138 of the NI Act, documents
produced in support thereof and the verification in the form of
affidavit of the complainant, is of the view that examination of
the complainant or his witness(s) is required, the Magistrate
may call upon the complainant to remain present before the
court and examine the complainant and/or his witness upon
oath for taking a decision whether or not to issue process on
the complaint under Section 138 of the NI Act.”
16. Thus, in light of the aforenoted decision, it becomes clear that in
respect of complaints under Section 138 of the NI Act, once the
complainant files an affidavit in support of the complaint, it is within
the Magistrate's discretion to decide whether to examine the
complainant or witnesses on oath. The Magistrate is not bound to do so
and may rely solely on the complaint, supporting documents, and the
affidavit to decide whether to issue process.
17. The principle laid down in A.C. Narayanan was essentially
anchored on the overriding effect of Section 145 of the NI Act, which
reads:
“145. Evidence on affidavit.—
(1) Notwithstanding anything contained in the Criminal Procedure
Code, 1973 (2 of 1974), the evidence of the complainant may
be given by him on affidavit and may, subject to all just
exceptions be read in evidence in any enquiry, trial or other
proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of
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the prosecution or the accused, summon and examine any

person giving evidence on affidavit as to the facts contained
therein.”
18. This provision expressly permits the complainant to tender
evidence by way of affidavit and enables the Court to proceed on such
material unless a request is made for summoning the witness for cross-
examination. Thus, the NI Act carves out a procedural departure from
the general requirement under Section 200 CrPC (and now Section 223
BNSS), recognising the affidavit as a valid substitute for oral
examination at the pre-cognizance stage.
19. At this stage, it would also be useful to refer to the decision of
the Supreme Court in A.R. Antulay v. Ramdas Sriniwas Nayak9 wherein
the procedural steps to be followed by the Magistrate upon the filing of
a private complaint were discussed in detail. The Court explained:
“31.….When a private complaint is filed, the court has to examine
the complainant on oath save in the cases set out in the proviso to
Section 200 CrPC. After examining the complainant on oath and
examining the witnesses present, if any, meaning thereby that the
witnesses not present need not be examined, it would be open to the
court to judicially determine whether a case is made out for issuing
process. When it is said that court issues process, it means the court
has taken cognizance of the offence and has decided to initiate the
proceeding and as a visible manifestation of taking cognizance,
process is issued which means that the accused is called upon to
appear before the court. This may either take the form of a summons
or a warrant, as the case may be. It may be that after examining the
complainant and his witnesses, the court in order to doubly assure
itself may postpone the issue of process, and call upon the
complainant to keep his witnesses present. The other option open to
the court is to direct investigation to be made by a police officer….
Upon a complaint being received and the court records the
verification, it is open to the court to apply its mind to the facts
disclosed and to judicially determine whether process should or
should not be issued. It is not a condition precedent to the issue of
process that the Court of necessity must hold the inquiry as
envisaged by Section 202 or direct investigation as therein
contemplated. The power to take cognizance without holding inquiry
or directing investigation is implicit in Section 202 when it says that
the Magistrate may “if he thinks fit, postpone the issue of process
against the accused and either inquire into the case himself or direct
an investigation to be made by a police officer…, for the purpose of
deciding whether or not there is sufficient ground for proceeding”.
Therefore, the matter is left to the judicial discretion of the court
whether on examining the complainant and the witnesses if any as
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contemplated by Section 200 to issue process or to postpone the

issue of process. This discretion which the court enjoys cannot be
circumscribed or denied by making it mandatory upon the court
either to hold the inquiry or direct investigation. Such an approach
would be contrary to the statutory provision. Therefore, there is no
merit in the contention that by entertaining a private complaint, the
purpose of speedy trial would be thwarted or that a pre-process
safeguard would be denied.”
20. While Section 223 of the BNSS broadly retains the procedural
framework of Section 200 of the CrPC with respect to the examination
of the complainant and witnesses, it introduces a significant departure
through the insertion of a proviso mandating that the proposed accused
be afforded an opportunity of hearing before cognizance is taken. This
proviso marks a substantive procedural safeguard that did not exist
under the earlier regime. However, with regard to offences under
Section 138 of the NI Act, the Supreme Court in A.C. Narayanan v.
State of Maharashtra has categorically held that the Magistrate may, in
his discretion, proceed on the basis of the complaint, supporting
documents, and an affidavit of the complainant, without necessarily
examining the complainant or witnesses on oath prior to issuing
process. Accordingly, in the Court's view, the procedure for such cases
has not undergone any material change with the enactment of Section
223 of the BNSS. The requirement of examining the complainant and
the witnesses upon oath, at the pre-cognizance stage remains directory
and not mandatory in complaints under Section 138 of the NI Act.
21. Therefore, in cases under Section 138 of the NI Act, the
Magistrate is not bound to examine the complainant and witnesses on
oath before issuing notice under the first proviso to Section 223(1) of
the BNSS. The requirement of a pre-cognizance hearing now statutorily
introduced under the BNSS is a distinct and additional procedural step,
but it does not alter the established position that, for offences under
the NI Act, reliance on affidavits and documentary material suffices for
taking cognizance. In this light, the Petitioner's contention, that the
Magistrate erred in issuing notice under Section 223 without first
examining the complainant and witnesses on oath, does not merit
acceptance. The challenge to the Impugned notice is, therefore,
misconceived and without legal basis.
22. The decisions relied upon by the Petitioner, are not applicable to
the present factual context. The judgment of High Court of Karnataka in
Basanagouda R. Patil concerns an offence under Section 356(2) of the
BNSS and does not deal with offences under the Negotiable
Instruments Act. Similarly, the judgment of High Court of Kerala in
Suby Antony is factually distinguishable and does not apply to the
controversy at hand.
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23. In light of the above, the Court finds no merit in the present
petition.
24. Dismissed.
———
1
“BNSS”

2
“CrPC”

3
“Impugned notice”

4
“NI Act”

5
2025 SCC OnLine Ker 532

6
2024 SCC OnLine Kar 96

7
(2010) 13 SCC 336

8
(2014) 11 SCC 790

9
(1984) 2 SCC 500

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