Pre-cognizance notices are not mandatory under Section 138 of the NI Act, as per Supreme Court precedent.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS ST MONDAY, THE 1 DAY OF DECEMBER 2025 / 10TH AGRAHAYANA, 1947 CRL.MC NO. 10421 OF 2025 AGAINST THE ORDER/JUDGMENT DATED IN CMP NO.7085 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,ERNAKULAM PETITIONER / COMPLAINANT :

MR.THAYAL PERINGALAM ABDUL KAREEM, AGED 72 YEARS S/O LATE MR ABDULLA, RESIDING AT RAHMATH MANZIL, PADNE THEKKEPURAM, KASARGOD DISTRICT, KERALA, PIN -

673001 BY ADVS.

SHRI.NINOJ P.L.

SHRI.DANIEL A.J.

RESPONDENTS/ACCUSED/ STATE : 1 MR.MIRSHAD EDALODIYIL, RESIDING AT PLOT NO.1, GOODLAND GARDENS, PALLIPAATTU AYYAPPA KSHETRAM RD, CIVIL STATION, KOZHIKODE, KERALA, PIN - 673020

2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KERALA, PIN - 682031 SR.PP.SMT.SEETHA S THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

01.12.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

C.S.DIAS, J.

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CRL.MC NO. 10421 OF 2025 ----------------------------------------------------

Dated this the 1^st day of December, 2025

ORDER

The petitioner is the complainant in CMP No.7085/2024 pending on the file of the Court of the Judicial First Class Magistrate -1, Ernakulam, which has been filed against the 1st respondent alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 , (‘NI Act’, in short).

2. The petitioner states in the Crl.M.C that, he is a senior citizen. He had filed Annexure A1 complaint on 10.12.2024. However, even after the lapse of nearly one year, cognizance has not been taken on the complaint. The pendency of the complaint is causing severe prejudice and hardship to the petitioner. Hence, the Crl.M.C.

3. Pursuant to the directions of this Court, the Judicial First Class Magistrate -1, Ernakulam (Magistrate), by communication dated 28.11.2025, has informed this Court that, in view of the mandatory stipulation under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2020 (‘BNSS’, in short), that a notice has to be issued to the accused before taking cognizance, notice was ordered to the 1^st respondent. However, since there was no sufficient stamps furnished by the petitioner, notice could not be send to the 1^st respondent. Accordingly, the case has been adjourned to 27.02.2026. Nonetheless, in view of the decision of the Hon’ble Supreme Court inSanjabij Tari v. Kishore S. Borcar [2025(6) KHC 250] , wherein it has been categorically held that there no necessity to issue pre- cognizance notice to an accused alleged to have committed an offence under Section 138 of the NI Act. Now, notice in such complaint is not issued at the pre- cognizance stage. However, since the petitioner’s complaint has been adjourned to 27.02.2026, cognizance would be taken without issuing notice to the 1^st respondent on 27.02.2026.

4. I have heard the learned counsel for the petitioner and the learned Public Prosecutor. In view of the limited relief I propose to pass, I dispense with notice to the 1^st respondent.

5. It is not in dispute that Annexure A1 complaint was filed on 10.12.2024. The learned Magistrate has stated that, it is only due to the mandate under Section 223 of the BNSS, notice was ordered to the 1^st respondent. It was after the notice was ordered to the 1^st respondent, in September 2025, the Hon’ble Supreme Court in Sanjabij Tari’s case (supra) has held that there is no necessity to issue notice to the accused at the pre- cognizance stage. But, in the mean time, the case has been adjourned to 27.02.2026.

6. On a consideration of the facts and the materials on record, especially that the petitioner is a senior citizen and the complaint was filed a year back, I am of the definite view that the Trial Court is to be directed to advance CMP No.7085/2024 and take cognizance of the offence in view of the decision in Sanjabij Tari’s case.

Accordingly, I allow the Crl.M.C, by ordering CMP No.7085/2024 to be advanced from 27.02.2026 to 18