Jammu & Kashmir High Court – Srinagar Bench
Mohammad Haleem Khan vs Qaiser Nizami on 1 July, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
67
Supp
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
CRM (M) No. 360/2025
CrlM No. 853/2025
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 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
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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.
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
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CrlM No. 853/2025
with law after following procedure prescribed in First
Proviso to Section 223 of the BNSS.
(Sanjay Dhar)
Judge
SRINAGAR
01.07.2025
Aasif