Neutral Citation No. - 2025:AHC:115474 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 23037 of 2025 Applicant :- Amit Kushwaha Opposite Party :- State of U.P. and Another Counsel for Applicant :- Brijesh Kumar Yadava,Jitendra Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Jitendra Kumar Srivastava, learned counsel for the applicant and Sri Vikas Sharma, learned State Law Officer for the State. 2. In view of the order, which is being proposed to be passed today, notices are not being issued to O.P. No.2. 3. This is an application under Section 528 of BNSS preferred by the applicant for quashing the summoning order dated 27.9.2024 as well as entire proceedings of Complaint Case No.30320 of 2024 (Amit Kushwaha Vs through Amit Kushwaha) under 138 of N.I. Act Police Station Jangipur, District Ghazipur pending before the court of Additional Civil Judge (JD)/ Judicial Magistrate Court No.02, Ghazipur. 4. Learned counsel for the applicant has submitted that a complaint was lodged by O.P. No.2 against the applicant herein on 15.07.2024 under Section 138 of the N.I. Act with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque bearing number "776661" dated 30.05.2024 of an amount of Rs.9,40,000/-, which on presentation in the bank came to be dishonoured on 11.06.2024, followed by a statutory demand notice dated 18.06.2024 and the complaint on 15.07.2024. Thereafter the applicant came to be summoned on 27.09.2024 under Section 138 of the N.I. Act. 5. Questioning the summoning order, the present application has been filed. 6. Learned counsel for the applicant has submitted that in view of the provisions contained under first proviso to Section 223 of the BNSS, before taking cognizance, the Magistrate has to accord an opportunity to the accused to be heard, however, in the present case, no opportunity has been accorded to the applicant to set forth its say at pre-cognizance stage. Attention has been drawn towards para-2 of the Supplementary Affidavit dated 09.07.2025 to buttress the said submission. Reliance has been placed upon a decision of a coordinate Bench of this Court in Prateek Agarwal vs. State of U.P. and another, 2024 SCC OnLine All 8212. 7. Prayer in the present application is to quash the summoning order. 8. Learned A.G.A. on the other hand submits that from the allegations contained in the complaint vis-a-vis the statements of the witnesses, this much is clear that prima facie offences are made out, however, he could not dispute the fact that in view of the first proviso of Section 223 of BNSS, opportunity at a pre-cognizance stage opportunity was accorded to the applicant. 9. I have heard the submissions so made across the Bar and perused the record carefully. 10. The summoning order dated 27.09.2024 does not spell out that any notice of opportunity to put forward the stand was accorded to the applicant at pre-cognizance stage. Section 223 of the BNSS under Chapter XVI reads as under: - "223. 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: Examination of complainant. Provided that no cognizance of an offence under this section shall be taken by the 10 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 further 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: Provided further that in case of a complaint against a public servant, the Magistrate shall comply with the procedure provided in section 217." 11. A coordinate Bench of this Court had the occasion to interpret and consider the provisions of Section 223 of BNSS and in Prateek Agarwal (supra), the following was observed: - "8. Proviso of Sub Section (1) of Section 223 of the B.N.S.S. mandates that a Magistrate while taking cognizance of an offence, on a complaint, shall examine upon oath, the complainant and the witnesses present, if any, and reduce it into writing. The Proviso further mandates that no cognizance of an offence shall be taken by the Magistrate without giving an opportunity to the accused of being heard. Section 227 of the B.N.S.S. deals with the issuance of process which is akin to Section 204 of the Cr.P.C. 9. Relevant part of the order dated 27.9.2024 passed in Criminal Petition No.7526 of 2024 (Sri Basanagouda R. Patil Vs. Sri Shivananda S. Patil) passed by High Court of Karnataka is as under:- "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, 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 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." 12. As the compliance of first proviso to Section 223 is not apparent from the summoning order, thus the summoning order dated 27.9.2024 passed in Complaint Case No.30320 of 2024 (Amit Kushwaha Vs through Amit Kushwaha) under 138 of N.I. Act Police Station Jangipur, District Ghazipur pending before the court of Additional Civil Judge (JD)/ Judicial Magistrate Court No.02, Ghazipur is set aside. 13. The matter stands remitted back to the court below to pass a fresh order strictly in accordance with law. 14. For facilitation of early disposal, the certified copy of the order passed today, shall be submitted by the applicant before the court below by 25.07.2025. 15. In view of above observations, the application is disposed of. Order Date :- 17.7.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad