- 1 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL PETITION NO. 201604 OF 2024 (482(Cr.PC)/528(BNSS)) BETWEEN: 1. HANUMESH S/O SHARANAPPA KARANAGI, AGE: 45 YEARS, OCC: CHAIRMAN OF SUGURSHWAR EDUCATION TRUST DEOSUGUR, TQ. AND DIST. RAICHUR-584101, (CORRECT ADDRESS) BUT IN PRIVATE COMPLAINT SHOWN AS BELOW, HANUMESH S/O SHARANAPPA AGE: YEARS, OCC: R/O. H.NO. 13/7/107/43, YERAMARUS CAMP, SHAKTI NAGAR ROAD, TQ. AND DIST. RAICHUR-584101. AND ALSO, M/S KARANAGI BROTHERS ENTERPRISE, ITS REPRESENTS BY, HANUMESH S/O SHARANAPPA KARANAGI, PLOT NO. 106 RAJENDRA GUNJ, HYDERABAD ROAD, RAICHUR, TQ .AND DIST. RAICHUR584101. …PETITIONER (BY SMT. PATIL SHANTABAI SUBHASH, ADVOCATE) Digitally signed by SHIVAKUMAR HIREMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 AND: JAY PRAKASH PATIL KYADIGERI, AGE: 45 YEARS, OCC: AGICULTURE, R/O. H. NO.1-11-38, MAHALAKSMI LAYOUT, NIJALINGAPPA COLONY, RAICHUR-584101. …RESPONDENT (RESPONDENT SERVED) THIS CRL.P IS FILED U/S.482 OF CR.P.C.(OLD), U/S 528 OF BNSS (NEW) PRAYING TO ALLOW THE PETITION AND TO QUASH THE ENTIRE PROCEEDINGS IN PC NO. 307/2024 AND CC NO. 4282/2024 FOR THE OFFENCES PUNISHABLE U/SEC. 138 OF N I ACT, 1881 PENDING BEFORE II ADDL. CIVIL JUDGE AND JMFC-IV RAICHUR FOR THE OFFENCE PUNISHABLE U/SEC. 138 OF NI ACT, 1881 PENDING. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY ORAL ORDER (PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) 1. This petition under Section 528 of Bharatiya Nagarika Suraksha Sanhita, 2023, is filed by the accused, with a prayer to quash the entire proceeding in C.C.No.4282/2024 pending before the Court of II Additional Civil Judge and JMFC IV, Raichur, arising out - 3 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 P.C.No.307/2024, registered for the offence punishable under Section 138 of Negotiable Instruments Act, 1881. 2. Heard the learned counsel for the parties. 3. The respondent who is served in the matter has remained unrepresented before this Court. 4. Learned counsel for the petitioner submits that before taking cognizance of the alleged offence, the trial Court ought to have heard the accused as provided under Section 223 of BNSS, 2023 and since the said exercise has not been done in the present case, the order of taking cognizance for the alleged offence is bad in law. 5. The contention urged by the learned counsel for the petitioner has been considered by the co-ordinate Bench of this Court in Criminal Petition No.7526/2024, disposed of on 27.09.2024 and in paragraph Nos.8 to 11 of the said order, it has been observed as follows: 8. The obfuscation generated in the case at hand is with regard to interpretation of Section 223 of the BNSS, as to whether on presentation of the complaint, - 4 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 notice should be issued to the accused, without recording sworn statement of the complainant, or notice should be issued to the accused after recording the sworn statement, as the mandate of the statute is, while taking cognizance of an offence the complainant shall be examined on oath. The proviso mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. 9. To steer clear the obfuscation, it is necessary to notice the language deployed therein. The Magistrate while taking cognizance of an offence should have with him the statement on oath of the complainant and if any witnesses are present, their statements. The taking of cognizance under Section 223 of the BNSS would come after the recording of the sworn statement, at that juncture a notice is required to be sent to the accused, as the proviso mandates grant of an opportunity of being heard. 10. Therefore, the procedural drill would be this way: A complaint is presented before the Magistrate under Section 223 of the BNSS; on presentation of the complaint, it would be the duty of the Magistrate / concerned Court to examine the complainant on oath, which would be his sworn statement and examine the witnesses present if any, and the substance of such examination should be reduced into writing. The question of taking of cognizance would not arise at this juncture. The magistrate has to, in terms of the proviso, issue a - 5 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 notice to the accused who is given an opportunity of being heard. Therefore, notice shall be issued to the accused at that stage and after hearing the accused, take cognizance and regulate its procedure thereafter. 11. The proviso indicates that an accused should have an opportunity of being heard. Opportunity of being heard would not mean an empty formality. Therefore, the notice that is sent to the accused in terms of proviso to sub-section (1) of Section 223 of the BNSS shall append to it the complaint; the sworn statement; statement of witnesses if any, for the accused to appear and submit his case before taking of cognizance. In the considered view of this Court, it is the clear purport of Section 223 of BNSS 2023.” 6. Under the circumstances, the order passed by the trial Court taking cognizance of the alleged offence without complying the requirement of Section 223 of BNSS, 2023, cannot be sustained. Accordingly, the following order: ORDER (i) The criminal petition is partly allowed; - 6 - NC: 2025:KHC-K:978 CRL.P No. 201604 of 2024 (ii) The impugned order dated 23.09.2024 passed by the trial Court in P.C.No.307/2024 taking cognizance of the alleged offence and directing the Registry to register a criminal case as against the accused/petitioner is quashed and the matter is remanded to the trial Court to redo the exercise afresh from the stage of recording the sworn statement of the complainant, in the light of the order passed by the co-ordinate Bench of this Court in Criminal Petition No.7526/2024. Sd/- (S.VISHWAJITH SHETTY) JUDGE SVH List No.: 1 Sl No.: 30 CT:PK