Mohammad Haleem Khan vs Qaiser Nizami on 1 July, 2025

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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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     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



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