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 P a g e | 2 CRM (M) No. 360/2025 CrlM No. 853/2025 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 P a g e | 3 CRM (M) No. 360/2025 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