S. 223 BNSS | Pre-Cognizance Hearing Not Mandatory For S. 138 NI Act Proceedings: J&K&L High Court

The Jammu & Kashmir High Court dismissed a petition seeking the quashing of proceedings under Section 138 of the Negotiable Instruments Act, 1881, ruling that the requirement of hearing the accused at the pre-cognisance stage under Section 223 BNSS stands dispensed with for cheque dishonour cases.

The Bench further noted that the initiation of a civil suit or parallel criminal proceedings by an accused after the filing of a cheque dishonour complaint cannot be used as a tool to 'derail' the statutory prosecution.

The petitioner challenged the proceedings initiated by the respondent under Section 138 of the NI Act, contending that the complaint was mala fide and an abuse of process and was allegedly filed as a counterblast to the petitioner's lawful monetary claim of ₹45 lakh.

It was submitted that the petitioner had already instituted a civil suit for recovery of the said amount and had also filed a private criminal complaint against the respondent.

The petitioner further argued that once the Trial Court had granted a hearing at the pre-cognizance stage under Section 223 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), such hearing could not later be dispensed with, and therefore the cognizance order was legally unsustainable.

Background

The respondent had filed a complaint under Section 138 of the NI Act before the Judicial Magistrate, Katra, on 04 June 2025. The Trial Court initially invoked Section 223 of the BNSS to grant a pre-cognizance hearing.

However, by order dated 29 October 2025, the Court took cognizance upon being satisfied that the cheques in question were dishonoured and that the statutory legal notice had been duly served.

In the interregnum, the petitioner instituted a civil recovery suit on 01 September 2025 before the District Judge, Udhampur, and also filed a private criminal complaint under Sections 115, 126, and 352 BNS against the respondent on 29 August 2025.

Relying upon the Supreme Court judgment in Sanjabij Tari v. Kishore S. Borcar & Anr. (2025 LiveLaw (SC) 952), the High Court held that proceedings under Section 138 NI Act are governed by the special statute, and the requirement of hearing the accused at the pre-cognizance stage under Section 223 BNSS stands dispensed with.

The Court further held that once the essential ingredients of Section 138 issuance of cheque, dishonour, service of statutory notice, and failure to pay are prima facie established, the Trial Court is competent to take cognizance.

Rejecting the plea of non-service of notice, the Court noted that postal receipts clearly demonstrated service at the same address where the petitioner had earlier appeared through counsel and sought time to file objections.

The argument of denial of hearing was also rejected as being contrary to the record as the Court noted that the "physical non-production of the petitioner was deliberately avoided by his counsel". Thus, the plea was dismissed.

Case-Title: Jasveer Singh and others vs Jugal Kishore, 2026