Judicial Magistrates must adhere to specific procedural requirements under the Negotiable Instruments Act when taking cognizance of Section 138 complaints.

JUDGMENT

02.05.2025 (ORAL)

1. In the facts and circumstances of the case and having regard to the issue involved, this Court is of the considered opinion that the matter can be disposed of even at this threshold stage without notice to the other side.

2. The matter is, accordingly, taken up for final disposal.

3. Through the medium of the instant petition having been filed under the provisions of Section 528 of Bharatiya Nagrik Suraksha Sanhita 2023 (for short BNSS), the petitioner has sought quashment of the order dated 27.03.2025 passed by the Court of learned Judicial Magistrate (Munsiff), Kishtwar on a complaint filed by the respondent against the former under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as „the Act‟ for short) and titled as ‘Noor Hussain vs Mohd Afzal’ Beigh, as also of the issuance of non-bailable warrant of arrest through a subsequent order dated 15.04.2025, on the main ground that the learned Magistrate while directing the issuance of pre-cognizance notice through the order impugned dated 27.03.2025 and of the non-bailable warrant of arrest through a subsequent order dated 15.04.2025, has acted in contravention of the procedure established for the trial of a complaint under the provisions the Act.

4. It is submitted by the learned counsel that a complaint under Section 138 of the Act, is required to be dealt with strictly under the provisions of the Act, more specially, contained under Section 142 . He submitted that issuance of pre-cognizance notice and the subsequent non-bailable warrant of arrest by the learned trial Magistrate is unwarranted under law governing a complaint filed under Section 138 of the Act. He submitted that the Magistrate while taking cognizance on a complaint under Section 138 of the Act has to satisfy whether the conditions as laid down in the proviso to Sections 138 and under Section 142 of the Act stand complied with thereby justifying a cause of action to the complainant/payee to file a complaint. As according to the learned counsel, the Magistrate while dealing with the complaint under Section 138 of the Act is not bound by the requirements that are needed to be completed, in case of a complaint filed under Section 223 BNSS. Learned counsel submitted that Section 142 of the Act providing for taking of cognizance of an offence under Section 138 of the Act starts with a “Non-obstante” clause thereby ruling out the strict application of the provisions of Section 223 of the BNSS.

5. Admittedly, Section 142 of the Act which gives the powers to a Judicial Magistrate to take cognizance of an offence punishable under Section 138 of the Act starts with “Non obstante” clause. A clear understanding of the provisions of Section 142 of the Act makes it clear that a Court of Judicial Magistrate 1^st Class or a Metropolitan Magistrate can take cognizance of an offence punishable under Section 138 of the Act only upon a complaint made in writing by the payee or as the case may be the holder in due course of the cheque. The provisions further provide that such a complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138 of the Act. Clause (2) of the Section 142 of the Act lays down as to which Court is vested with the jurisdiction to inquire into and to try an offence under Section 138 of the Act.

It is profitable to reproduce the provisions of Section 142 of the Act for the sake of convenience.

“ Section 142 in The Negotiable Instruments Act, 1881 142. Cognizance of offences.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):-

(a) no court shall take cognizance of any offence punishable under section 138 except