Judgment (Oral):

1. Heard learned counsel for the respective parties.

2. By this petition, the petitioner has impugned the show cause notice issued to the petitioner vide order dated 19th December, 2024 in C.R. Case No.94 of 2024 passed by the learned Chief Judicial Magistrate First Class, Nongpoh and as Serial No.03 Daily List such, seeks quashing and setting aside of the said impugned order and consequently, the proceeding arising therefrom.

3. The challenge to the show cause notice issued by the said aforesaid impugned order is, on the premise that the said order dated 19th December, 2024 has been passed contrary to the mandate of Section 223 of the BNSS.

4. According to the learned counsel for the petitioner, the learned Magistrate at Nongpoh, Ri-Bhoi District has failed to comply with the mandate of Section 223 of the BNSS. Learned counsel for the petitioner states that in this view of the matter, the impugned order and consequently, the proceeding be quashed and set aside.

5. Learned counsel for the sole respondent opposes the petition. He submits that in a proceeding filed under Section 138 of the Negotiable Instruments Act, 1881 (for short the “NI Act”), Section 223 of the BNSS has no application.

6. Both learned counsel have relied on various judgments in support of their submissions.

7. The respondent is the original complainant, who has filed a complaint i.e., C.R. Case No.94 of 2024, in the Court of the Judicial Magistrate First Class at Nongpoh, Ri-Bhoi District, alleging an offence punishable under Section 138 of the NI Act. It appears that pursuant to the said complaint, the learned Magistrate issued summons to the petitioner vide order dated 19th December, 2024. It is this summons, which has been issued by the learned Magistrate, which has been impugned in the aforesaid petition.

8. It is the petitioner’s case that the learned Magistrate has failed to comply with the mandate of Section 223 of the BNSS and as such, non-compliance thereof, would entail quashing of the impugned order and consequently, the proceeding.

9. Recently, the Karnataka High Court in Ashok v. Fayaz Aahmad reported in 2025 SCC OnLine Kar 490, had taken a view that the NI Act being a special statute, there shall be no requirement to issue summons to an accused in terms of Section 223 of the BNSS i.e., at the pre-cognizance stage. The Karnataka High Court after considering the provisions and object of the NI Act and other relevant provisions and several judgments in Paragraph 23 of the said judgment observed thus:

                   “23. Since Negotiable Instrument Act, 1881 is special enactment and in view of Section 5 of BNSS r/w Section 143 of NI Act as far as the cases tried by the learned Magistrate under Section 138 of NI Act, there is no need for the Magistrate to give an opportunity of being heard to the accused before taking cognizance on the complaint of payee/holder in due course of cheque for offence punishable under Section 138 of NI Act”.

10. The Apex Court in Sanjabij Tari v. Kishore S. Borcar & anr reported in (2025) 259 Comp Cas 685: 2025 SCC OnLine SC 2069, issued certain directions. In direction E, the Court gave the following direction:

                   “E. Recently, the High Court of Karnataka in Ashok v. Fayaz Aahmad has taken the view that since Negotiable Instruments Act is a special enactment, there is no need for the Magistrate to issue summons to the accused before taking cognizance (under Section 223 of the Bhartiya Nagarik Suraksha Sanhita) of complaints filed under Section 138 of Negotiable Instruments Act. This Court is in agreement with the view taken by the High Court of Karnataka. Consequently, this Court directs that there shall be no requirement to issue summons to the accused in terms of Section 223 of the Bhartiya Nagarik Suraksha Sanhita, i.e., at the pre-cognizance stage.

11. Considering the aforesaid, it is evident that in a proceeding under Section 138 of the NI Act, Section 223 of the BNSS has no application. Much stress was laid on the word ‘shall’ used by the Apex Court in the aforesaid judgment in Sanjabij Tari’s case in direction E, to state that the word ‘shall’ used will mean, the same is prospective in nature. The BNSS is primarily a procedural law. In the facts, keeping in mind the stage, at which the proceeding is at, and the non-applicability of Section 223 of the BNSS to a proceeding under Section 138 of the NI Act, it cannot be said that the word ‘shall’ in the judgment will have prospective application.

12. Considering the aforesaid, there is no merit in the submission advanced by the learned counsel for the petitioner.

13. Accordingly, no interference is warranted in the impugned order dated 19th December, 2024, on the premise that there is non-compliance of the provisions of Section 223 of the BNSS.

14. Petition is accordingly dismissed.

15. Needless to state, that all contentions of all parties on merits are kept open.