The court ruled that the special procedures under the Negotiable Instruments Act prevail over general procedural laws, thus no hearing is required before taking cognizance.

ORAL ORDER

The question that arises for consideration is that the procedure of hearing accused at the stage of taking cognizance as prescribed in the first proviso to Section *223 of Bharatiya Nagarik Suraksha Sanhita 2023 [hereinafter referred to as ‘ BNSS ’ for short] apply to the complaints for offence under Section 138 of Negotiable Instruments Act, 1881 .

2. Section 223 of BNSS deals with examination of complainant which reads thus;

“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-

* Corrected Vide Chamber order dated 07.05.2025

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(SAJ)

(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 the 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.”

3. Section 223 of BNSS corresponds to Section 200 of Cr.P.C. Section 223 of BNSS makes a departure from the earlier provision contained in Section 200 Cr.P.C, 1973, since under the proviso to Sub-Section (1) of 223, the Magistrate cannot take cognizance of an offence, without giving the accused an opportunity of being heard.

4. The said provision was not there in repealed Section 200 of Cr.P.C. In view of the change in law and as contemplated in the first proviso to Section 223 (1) of the BNSS , it is necessary to examine as to whether the Magistrate empowered to adjudicate complaint under Section 138 r/w Section 142 of the N.I.Act is also required to comply with the above said first proviso to Section 223 (1) of the BNSS or not.

5. The Madurai Bench of Madras High Court in Criminal OP(MD) No.19778/2022 and other connected matters between M/s.Ultimate Computer Care and Another Vs. M/s.S.M.K.Systems decided on 12.02.2025 has held as under;

“Having regard to the fact that the N. I. Act has prescribed a special procedure, it is a Special Law within the meaning of Section 5 of the BNSS , 2023. Hence, the procedure of hearing the accused at the stage of taking cognizance as prescribed in the proviso to Section 223 BNSS shall not apply to complaints under Section 138 of the N.I.Act, 1881.”

6. The BNSS , 2023 came into force with effect from 01.07.2024.

Section 5 of the Act deals with the heading “Saving”. It provides that nothing contained in BNSS shall, in the absence of a specific provision to the contrary, affect any special or Local Law for the time being in force, prescribed by any other law for the time being in force.(Corresponding to Section 5 of the CrPC, 1973).

Chapter XVI of BNSS , 2023, deals with heading “Complaints to Magistrate” ( Sections 223 to 226) (Corresponding to Sections 200 to 203 of the CrPC, 1973).

Chapter XVII of Negotiable Instruments Act, 1881 , deals with “penalties in case of dishonour of certain cheques for insufficiency of the funds in the accoun