The Karnataka High Court has held that the procedure of hearing the accused at the stage of taking cognizance of a complaint prescribed in the first proviso to Section 223 of the BNSS will not apply to complaints of offences committed under Section 138 of the Negotiable Instruments Act. For reference, Section 223 of the BNSS is different from the earlier provision contained in Section 200 of the CrPC. Under the proviso to 223(1), the Magistrate cannot take cognizance of an offence without giving an opportunity of being heard to the accused.
Justice Sivasankar Amarannavar passed this judgment while dismissing the plea of Ashok, who had approached the Court questioning the cognizance order passed by the Magistrate Court on a complaint filed by Fayaz Ahmad. The court said, “Since the Negotiable Instruments Act, 1881 is a special enactment and in view of Section 5 of the BNSS, Section 143 of the NI Act is applicable so far as cases tried by learned Magistrates under Section 138 of the NI Act are concerned, there is no need for the Magistrate to give an opportunity of being heard to the accused before taking cognizance of the complaint of the payee/holder in due course of cheque for the offence punishable under Section 138 of the NI Act.
The bench referred to the judgment of the Supreme Court in the case of Suresh Nanda v. CBI, 2008 (3) SCC 674, wherein it was held that the Passport Act is a special law whereas the CrPC is a general law. It is well settled that the special law prevails over the general law.
The bench then noted the procedure to be followed by the Magistrate for disposal of complaint filed under Section 138 of the Negotiable Instruments Act. It referred to the criminal petition decided on 11.02.2025. The court also refused to accept the coordinate bench’s decision in No. 201604/2024 Hanumesh s/o Sharanappa Karangi vs M/s Karangi Brothers Enterprise, in which the court held that before taking cognizance of an offence under Section 138 of the NI Act, the Magistrate shall comply with the requirement of Section 223 of the BNSS.
It said, “In the said case, the Court has not held that the Negotiable Instruments Act is a special statute and the procedure provided for trial of an offence punishable under Section 138 of the NI Act is a summary procedure and Section 5 of the BNSS.
