Jammu & Kashmir High Court – Srinagar Bench
Mohammad Haleem Khan vs Qaiser Nizami on 1 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
68
Supp
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM (M) No. 361/2025
CrlM No. 854/2025
Mohammad Haleem Khan ..... Petitioner (s)
Through: Mr. S N Ratanpuri, Adv.
V/s
Qaiser Nizami ..... Respondent(s)
Through: Mr. Umar Mir, Adv.
Coram:
Hon'ble Mr. Justice Sanjay Dhar, Judge
ORDER
01.07.2025
1. The petitioner has challenged order dated 15.04.2025, passed by
the learned Judicial Magistrate 1st Class, Pattan in a complaint filed
by the respondent against him under Section 138 of the Negotiable
Instruments Act. Vide the impugned order, the learned Magistrate
has taken cognizance of the offence and issued process against the
petitioner.
2. The petitioner has, challenged the impugned order primarily on the
ground that the learned Magistrate without issuing notice to the
petitioner/accused prior to taking cognizance of the offence, has
passed the impugned order which is contrary to the provisions
contained in First Proviso to Section 223 of the BNSS.
3. Issue notice to the respondent.
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CRM (M) No. 361/2025
CrlM No. 854/2025
4. Mr. Umar Mir, Advocate enters appearance and accepts notice on
behalf of the respondent.
5. Heard and considered.
6. So far as the ground urged by the learned counsel for the petitioner
is concerned, the same appears to be full of substance. First Proviso
to Section 223 of the BNSS clearly mandates the Magistrate to
issue pre-cognizance notice to accused and he has to be given
opportunity of being heard. But in the instant case, it seems that
the learned Magistrate has not adhered to the aforesaid provision
and has straightway taken cognizance of the offence and issued
process against the petitioner. The order impugned is, therefore not
sustainable in law.
7. In view of the above, the petition is allowed and the impugned
order dated 15.04.2025 passed by the learned trial Magistrate is set
aside, leaving it open to the learned Magistrate to proceed afresh in
the complaint in accordance with law after following procedure
prescribed in First Proviso to Section 223 of the BNSS.
(Sanjay Dhar)
Judge
SRINAGAR
01.07.2025
Aasif