Neutral Citation No. - 2025:AHC:91169 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 19336 of 2025 Applicant :- Swapanir Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Prashant Kumar Singh Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Prashant Kumar Singh learned counsel for the applicant as well as Sri Indrajeet Singh Yadav, learned AGA for the State/opposite party no.1. 2. In view of the order, which is being proposed to be passed, notices are not being issued to O.P. No. 2. 3. This application under Section 528 of the BNSS has been filed by the applicant to quash the entire proceedings of Complaint Case No.75963 of 2024 (Sandeep Yadav Vs Swapanir Kumar), under Section 138 of Negotiable Instruments Act, 1881, P.S. Bithoor, District Kanpur Nagar as well as summoning order dated 05.10.2024 passed by Additional Chief Judicial Magistrate, Court No. 1, Kanpur Nagar, pending in the court of Additional Chief Judicial Magistrate, Court No. 1, Kanpur Nagar. 4. The case of the applicant is that a complaint was lodged by the opposite party no.2 on 5.9.2024 under Section 138 of the N.I. Act against the applicant with an allegation that a cheque bearing no.000845 dated 17.5.2024 of Rs.3 lakh was drawn by the applicant in favour of the opposite party no.2 which on presentation in the bank was dishonoured for the first time on 5.7.2024 followed and 31.7.2024. A statutory demand notice was issued on 9.8.2024 followed by a complaint on 5.9.2024. Thereafter the applicant has been summoned on 5.10.2024 under Section 138 of the N.I. Act by the A.C.J.M. 1st, Kanpur Nagar in Complaint No.75963 of 2024. 5. Questioning the summoning the order the present application has been preferred. 6. Learned counsel for the applicant has submitted that the summoning order cannot be sustained for the simple reason that the present complaint had been lodged on 5.9.2024 post enforcement of BNSS, 2023 which came into effect from 1.7.2024. He has further submitted that the first proviso to Section 223 of the BNSS would come into play which mandates that the accused be given opportunity to be heard at pre-cognizance stage. He seeks to rely upon the decision of the Hon'ble Apex Court in Kushal Kumar Agarwal Vs. Directorate of Enforcement in Criminal Appeal No.2749 of 2025 decided on 9.5.2025 and also decision of this Court in Prateek Agarwal vs. State of U.P. and another in Application U/S 482 No.10390 of 2024 decided on 26.11.2024. 7. Learned AGA on the other hand could not dispute the said proposition of law however he submits that the summoning order has been passed without considering the import and the impact of first proviso of the Section 223 of the B.N.S.S. 8. I have heard the submissions so made across the bar and perused the record carefully. Before delving into the tenability of the argument so sought to be advanced by the respective parties, it would be apposite to extract Section 223 of the B.N.S.S.:- "223. Examination of complainant.-(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses - (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them: (2) A Magistrate shall not take cognizance on a complaint against a public servant for any offence alleged to have been committed in course of the discharge of his official functions or duties unless- (a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged; and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received." 9. A perusal of the first proviso to Section 223 of the B.N.S.S. would reveal that no cognizance of any offence shall be taken by the Magistrate without giving an opportunity to be heard. Here the Court finds that the complaint has been lodged on 5.9.2024 and the summoning order has been passed on 5.10.2024 post enforcement of the B.N.S.S. which came into effect from 1.7.2024. Once the position being so the Magistrate was under obligation to have put to notice the applicant at pre-cognizance stage. Since the said exercise has not been undertaking thus this Court has no option but to set aside the summoning order. 10. Accordingly, the present application is being decided in the following term:- (a) the order dated 5.10.2024 passed by A.C.J.M. 1st, Kanpur Nagar in Complaint Case No.75963 of 2024 (Sandeep Yadav Vs Swapanir Kumar) is set aside, (b) matter stands remitted back to the court below to pass a fresh order strictly in accordance with law; (c) for facilitation of early disposal, the applicant shall submit a certified copy of the order before the court below by 13.06.2025. 11. Accordingly, the application stands disposed of. Order Date :- 28.5.2025 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad