Does The First Proviso to Section 223(1) of the BNSS Apply to An offence Under Section 138 of the N.I. Act?

The controversial provision

Section 223(1) of the BNSS states that, 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.

However, the first proviso to Section 223(1) of the BNSS states that, no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.

The first proviso to Section 223(1) of the BNSS has sparked much debate in legal circles, for the reason that it grants a right of hearing to a prospective accused before the trial court, even before the actual commencement of proceedings against him under Section 227 of the BNSS (Section 204 of the Code). There is also conflict of views regarding the actual stage at which the opportunity of hearing contemplated under the first proviso to Section 223(1) of the BNSS shall be given to the accused^[1].

Applicability of the provision to an offence under Section 138 of the N.I. Act

A bare reading of the first proviso to Section 223(1) of the BNSS would show that, it would apply to a complaint filed for an offence under Section 138 of the Negotiable Instruments Act (for short 'the N.I.Act') also and before taking cognizance of that offence, the accused shall be given an opportunity of being heard. This would definitely cause delay in the disposal of the cases under Section 138 of the N.I.Act and the pendency of such cases is likely to rise to an alarming level, defeating the very purpose of introducing Section 138 in the N.I.Act.

Section 142 of the N.I.Act deals with taking cognizance of an offence under Section 138 of the Act. Section 142(1)(a) of the N.I.Act states that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. Section 142(1)(b) of the N.I. Act states that, such complaint shall be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. Section 142(1)(c) of the N.I.Act states that, no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the First Class shall try any offence punishable under Section 138 of the Act.

Section 4(2) of the BNSS, corresponding to Section 4(2) of the Code, requires that all offences under any law other than the Bharatiya Nyaya Sanhita, 2023 shall be inquired into or tried and otherwise dealt with according to the provisions of the BNSS, subject to any other enactment which provides a different mode of inquiry or trial for such offence. Section 5 of the BNSS, corresponding to Section 5 of the Code, states that, nothing contained in the BNSS shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Some legal experts have advanced a view that, in the light of the provisions contained in Section 4(2) and Section 5 of the BNSS and also the special procedure for taking cognizance mentioned in Section 142(1)(a) of the N.I.Act, the first proviso to Section 223(1) of the BNSS has no application to a complaint filed for an offence under Section 138 of the N.I.Act. However, there is a flaw in this view. Section 142(1) of the N.I. Act can have overriding effect on the provisions of the Code (now the BNSS) only with regard to the matters and only to the extent specified in that provision. The provision does not exclude applicability of every provision in the BNSS/Code regarding taking cognizance of an offence. Non-application of the BNSS/Code is limited to the three matters stated in clauses (a) to (c) of Section 142(1) of the N.I.Act and to the extent specified therein^[2]. The non-obstante clause in Section 142(1) of the N.I.Act has to be read and understood in the context and for the purpose it is used^[3].

There is nothing in the first proviso to Section 223(1) of the BNSS which is inconsistent with the provisions contained in Section 142(1) of the N.I.Act. Therefore, it cannot be found that the special provisions contained in Section 142(1) of the N.I.Act, regarding taking cognizance of an offence punishable under Section 138 of the Act, would override the general provision contained in the first proviso to Section 223(1) of the BNSS.

However, it would be pertinent here to point out that, in a recent decision, the Madras High Court, while issuing directions regarding expeditious disposal of cases under Section 138 of the N.I.Act, has held that, since the N.I Act has prescribed a special procedure, it is a special law within the meaning of Section 5 of the BNSS and therefore, the procedure of hearing the accused at the stage of taking cognizance as prescribed in the first proviso to Section 223(1) of the BNSS shall not apply to complaints under Section 138 of the N.I Act^[4].

Cognizance of the offence or the offender?

It is a settled principle of law that cognizance is taken of the offence and not the offender^[5]. The bar under the first proviso to Section 223(1) of the BNSS is on taking cognizance of an offence. If for any reason, as an exception to the general rule, it can be found that, in complaints filed for an offence under Section 138 of the N.I.Act, cognizance is taken of the offender and not the offence, then such complaints could be brought out of the purview of the first proviso to Section 223(1) of the BNSS.

In this context, the observations made by the Supreme Court in the case of Harihara Krishnan v. Thomas^[6], assume significance. The Supreme Court has observed as follows:

“The scheme of the prosecution in punishing under Section 138 of the Act is different from the scheme of the Cr.P.C. …… By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. ……. Therefore, in the context of a prosecution under Section 138, the concept of taking cognizance of the offence but not the offender is not appropriate. Unless the complaint contains all the necessary factual allegations constituting each of the ingredients of the offence under Section 138, the Court cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 that the provisions dealing with taking cognizance contained in the Cr.P.C should give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142”.

The Supreme Court has specifically held that, in the context of a prosecution under Section 138 of the N.I.Act, the concept of taking cognizance of the offence but not the offender is not appropriate and that the offence under Section 138 of the N.I.Act is person specific and that the provisions dealing with taking cognizance contained in the Code should give way to the procedure prescribed under Section 142 of the Act.

As per the definition given under Section 2(1)(h) of the BNSS (Section 2(d) of the Code), a complaint can be made against a known or unknown person. However, a complaint for an offence under Section 138 of the N.I.Act can be filed only against a known person. The person who has drawn the cheque shall be specifically mentioned in a complaint filed for an offence under Section 138 of the N.I.Act. In the case of Harihara Krishnan, the Supreme Court has given specific emphasis on this aspect.

Therefore, it can be seen that, the opinion of the Madras High Court, that the N.I Act has prescribed a special procedure and hence, the procedure of hearing the accused at the stage of taking cognizance as prescribed in the first proviso to Section 223(1) of the BNSS will not apply to complaints under Section 138 of the N.I Act, gets support from the view taken by the Supreme Court in the case of Harihara Krishnan.

One may hope that the Supreme Court will soon get opportunity to declare the law on the issue, on interpretation of the first proviso to Section 223(1) of the BNSS and to settle the entire controversy on the provision.

Author is a Former Judge, High Court of Kerala. Views are Personal. 

1. See the decision of the Karnataka High Court in Basanagouda R. Patil v. Shivananda S. Patil (2024 LiveLaw (Kar) 417) and the Kerala High Court in Suby Antony v. JFCM (2025 LiveLaw (Ker) 64) and also the Article by Justice V. Ramkumar published in LiveLaw on 09.02.2025 under the title “A flawed law and an equally flawed interpretation of that law” ↑

2. Pankajbhai Nagjibhai Patel v. State of Gujarat: AIR 2001 SC 567. ↑

3. Yogesh Upadhyay v Atlanta Limited AIR 2023 SC 1151 ↑

4.  M/s.Ultimate Computer Care v. M/s.S.M.K.Systems: 2025 LiveLaw (Mad) 57: 2025:MHC:369 ↑

5. Pradeep S. Wodeyar v. State of Karnataka: (2021) 19 SCC 62. ↑

6. AIR 2017 SC 4125. ↑