No Requirement To Issue Pre-Cognizance Notice U/S 223 BNSS To Accused In Cheque Bounce Complaint: Gauhati High Court
Bhavya Singh
22 Jan 2026 3:37 PM IST
Relying on the Supreme Court's decision in Sanjabij Tari vs. Kishore S. Borcar 2025 LiveLaw (SC) 952, the Gauhati High Court has held that a Magistrate is not required to issue notice to the accused at the pre-cognizance stage in a complaint under Section 138 of the Negotiable Instruments (NI) Act.
The Court clarified that issuing such notice by invoking the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) is legally unsustainable as the NI Act is a special enactment.
A bench of Justice Manish Choudhury, presiding over the case, observed, "… the impugned Order of the Trial Court to the extent of issuing notice to the accused persons … is found to have suffered from infirmity for the reason that the Trial Court has proceeded to issue notice to them at the pre-cognizance stage in purported adherence to the first proviso to sub-section [1] of Section 223, BNSS".
The ruling came in a Criminal Revision Petition filed under Section 438 read with Section 442 of the BNSS, arising from an order passed by the Trial Court (Judicial Magistrate, First Class, Kamrup [M]) on September 25, 2025, in an NI Act Case instituted on a complaint under Section 138.
The complainant alleged that a cheque for Rs. 10,00,000/-was dishonoured. The company concerned and its Director and Additional Director were arrayed as accused, with the assertion that the cheque had been issued on behalf of the company and that the individual accused were in charge of its affairs and vicariously liable.
The complainant had filed an initial deposition-cum-written evidence on affidavit, along with supporting documents.
The High Court noted that the Trial Court, after examining the complaint, affidavit, and exhibits, had recorded that sufficient grounds existed to proceed against the accused. However, the Trial Court deferred taking cognizance and directed issuance of notice to the accused to show cause as to why cognizance should not be taken, purportedly under Section 223 BNSS.
Setting aside this course of action, the High Court referred to the Supreme Court's judgment in Sanjabij Tari, which settled that there is no need for the Magistrate to issue a summons to the accused before taking cognisance [under Section 223 of BNSS] of complaints filed under Section 138 of the NI Act.
Interfering with this course of action, the High Court confined itself to correcting the procedural error. The Court directed, “The learned Trial Court shall now take a fresh decision on the matter of cognizance and issuance of process to the accused persons.”
The revision petition was accordingly allowed to the limited extent indicated above.
Case Title: PD Savera LLP v. Galacon Infrastructure and Projects Pvt. Ltd. & Ors.
Case Number: Criminal Revision Petition No. 5 of 2026 (Crl.Rev.P./5/2026)