Mohammad Haleem Khan vs Qaiser Nizami on 1 July, 2025

Jammu & Kashmir High Court – Srinagar Bench

Mohammad Haleem Khan vs Qaiser Nizami on 1 July, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

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                                                    Supp


     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT SRINAGAR
                                 CRM (M) No. 365/2025
                                     CrlM No. 858/2025

Mohammad Haleem Khan
                                                           ..... Petitioner (s)

                              Through: Mr. S N Ratanpuri, Adv.

                        V/s

Qaiser Nizami
                                              ..... Respondent(s)
                           Through: Mr. Mir Umar, Adv.
Coram:
           Hon'ble Mr. Justice Sanjay Dhar, Judge

                                   ORDER

01.07.2025

1. The petitioner has challenged order dated 26.03.2025, 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..

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CRM (M) No. 365/2025
CrlM No. 858/2025

3. Issue notice to the respondent.

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 26.03.2025 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