No need to hear accused before taking cognisance in cheque bounce cases: Karnataka High Court

Bengaluru: The Karnataka High Court has said that in cheque bounce cases, there is no need for the magistrates to give an opportunity of being heard, to the accused before taking cognisance of the complaint of payee/holder. The procedure of hearing the accused at the stage of taking cognizance is prescribed under section 223 (1) of Bharatiya Nagarik Suraksha Sanhita (BNSS). This procedure will not apply to the complaints for offence under section 138 of Negotiable Instruments (NI) Act, a special enactment, Justice Shivashankar Amarannavar said.

In the case at hand, Ashok, a resident of Hubballi, had challenged the cheque bounce case registered against him before a local court. The petitioner claimed that in view of the requirement under BNSS section 223(1), the trial judge should have given him an opportunity of hearing before taking cognizance of the complaint under section 138 of NI Act. He further said that on the basis of this procedural infirmity, the complaint against him should be quashed.

Justice Shivashankar Amarannavar cited various decisions of the Apex Court and said that the top court has clearly held that provisions of special law prevail over the general law. “On a bare reading of Section 142 of the NI Act, the procedure under the CrPC has been departed from. First and foremost, no Court is to take cognizance of an offence punishable under Section 138 of the NI Act except on a complaint made in writing by the payee or the holder in due course of the cheque – the victim. By Section 147 of the NI Act, offences under the NI Act are compoundable without any intervention of the Court as is required by Section 320(2) of the CrPC (Section 359 of BNSS). Section 138 NI Act proceedings can be said to be a “Civil Sheep” in a “criminal wolf’s” clothing, as it is interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a Court in cheque bouncing cases,” Justice Shivashankar Amarannavar said.

The court further said that an offence under section 138 of NI Act is almost in the nature of civil wrong which has been given criminal overtones. The court held that the Magistrate has not committed any error by not issuing notice to the petitioner in the case at hand prior to taking cognizance of the cheque bounce case.