Sanchayita Lahkar

The Gauhati High Court Single Bench of Justice Manish Choudhury has set aside a Magistrate’s direction to issue a pre-cognizance notice to the proposed accused in a cheque dishonour complaint under Section 138 of the Negotiable Instruments Act. While the Magistrate had found sufficient grounds to proceed, it had ordered issuance of notice to the accused before taking cognizance. It found the Magistrate’s reliance on the first proviso to Section 223(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 to be legally unsustainable as the NI Act is a special enactment. The Magistrate was directed to decide afresh on cognizance and process.

The proceedings arose from a criminal revision petition filed by the complainant challenging an order passed by the Judicial Magistrate, First Class, Guwahati, in a cheque dishonour complaint. The complaint alleged that a cheque issued on behalf of a company for a sum of Rs. 10,00,000/- was dishonoured upon presentation. The company, along with its Director and Additional Director, was arrayed as accused. It was stated in the complaint that the individual accused were in charge of and responsible for the day-to-day affairs of the company, and therefore vicariously liable for the alleged offence.

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The complainant asserted compliance with the statutory requirements for instituting proceedings relating to cheque dishonour. Along with the complaint, an initial deposition-cum-written evidence on affidavit was filed, supported by documentary exhibits. Upon hearing the complainant’s counsel and perusing the complaint, affidavit, and exhibits, the Trial Court recorded satisfaction that sufficient grounds existed to proceed against the accused persons. However, prior to taking cognizance, the Trial Court directed issuance of notice to the accused to show cause as to why cognizance should not be taken, referring to the provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023. The legality of this direction formed the subject matter of challenge before the High Court.

The High Court examined the procedural course adopted by the Trial Court after acceptance of the complaint and initial evidence. The Court noted that “after hearing the learned counsel for the complainant, the Trial Court accepted the initial deposition–cum–written evidence-on-affidavit” and that “on perusal of the contents of the complaint, initial deposition–cum–written evidence-on-affidavit and the exhibited documents, the Trial Court formed an opinion that there were sufficient ground for proceeding against the three accused persons.”

The Court further recorded that despite such satisfaction, “the Trial Court in the impugned Order dated 25.09.2025 has, however, recorded that before taking cognizance on the complaint, a notice should be issued to the accused persons to show cause as to why cognizance should not be taken against them in terms of Section 223, BNSS.”

While considering the legality of the said course, the High Court referred to the statutory framework and observed that “sub-section [1] of Section 223, BNSS, 2023 is relevant for consideration of the issue regarding validity or otherwise of the Trial Court decision to issue notice prior to taking cognizance on the complaint.” The Court reproduced the provision and its provisos as contained in the statute.

The High Court then referred to the binding precedent of the Supreme Court and recorded that “the law has been settled by the Hon’ble Supreme Court in Sanjabij Tari vs. Kishore S. Borcar and another, 2025 INSC 1158 wherein it has been held that since N.I. Act is a special enactment, there is no need for the Magistrate to issue summons to the accused before taking cognizance [under Section 223 of BNSS] of complaints filed under Section 138 of N.I. Act.” The Court further noted that “consequently, the Supreme Court has directed that there shall be no requirement to issue summons to the accused in terms of Section 223 of BNSS i.e. at the pre-cognizance stage.”

The High Court recorded that “the impugned Order of the Trial Court to the extent of issuing notice to the accused persons in the complaint… 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 Court also observed that “incidentally, the decision in Sanjabij Tari [supra] and the impugned order were passed on the same date.”

Finally, the High Court recorded that “as the position of law settled by the Supreme Court in the afore-stated manner, the criminal revision petition has been taken up for adjudication at the motion stage itself,” and that “for the very same reason, the matter of issuance of notice to the respondent nos. 1, 2 & 3 is found not necessary.”

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The High Court directed that “for the position settled by the Supreme Court, the impugned Order dated 25.09.2025 passed by the Trial Court is set aside and quashed to the afore-stated extent. The learned Trial Court shall now take a fresh decision on the matter of cognizance and issuance of process to the accused persons. The petitioner shall submit a certified copy of this order before the Trial Court so as to enable the Trial Court to take its decision afresh. The criminal revision petition stands allowed to the extent indicated above.”

Advocates Representing the Parties

For the Petitioner: Mr. D. Saraf, Advocate; Mr. S. S. Gupta, Advocate

Case Title: PD Savera LLP v. Galacon Infrastructure and Projects Pvt. Ltd. & Ors.
Neutral Citation: 2026: GAU-AS:515
Case Number: Case Number: Crl.Rev.P./5/2026
Bench: Justice Manish Choudhury