Quick answer: A magistrate need not hear the accused before taking cognizance of a cheque bounce complaint. The Supreme Court in Sanjabij Tari v. Kishore Borcar (2025) held that the Section 223 BNSS pre-cognizance hearing does not apply to Section 138 NI Act complaints, and the Karnataka, J&K and Meghalaya High Courts agree.
When the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced the CrPC in July 2024, it added a new safeguard for accused persons. Before a magistrate takes cognizance of a private complaint, the accused now gets a chance to respond. Soon after, accused persons in cheque bounce cases began demanding this hearing too. As a result, many Section 138 complaints stalled at the threshold. This guide explains how courts have settled the Section 223 BNSS cheque bounce question, and what it means for lenders, businesses and accused persons.
What Section 223 BNSS Changed
Section 223 BNSS replaces Section 200 of the old CrPC. Like before, the magistrate examines the complainant and witnesses on oath. However, the first proviso adds a new step. It says the magistrate cannot take cognizance of an offence without first giving the accused an opportunity to respond.
In Parvinder Singh v. Directorate of Enforcement (19 May 2026), the Supreme Court held that this proviso is mandatory in complaint cases. It ruled that cognizance taken without hearing the accused is void, and the accused need not show prejudice. That case, however, involved a PMLA complaint, not a cheque bounce complaint.
Does Section 223 BNSS Apply to Cheque Bounce Cases?
No. Courts treat Section 138 complaints differently because the Negotiable Instruments Act, 1881 is a special law with its own procedure. Section 5 of the BNSS saves special procedures, and the NI Act provides for a summary trial. Therefore, the general pre-cognizance hearing gives way to the NI Act’s faster process.
Key Rulings on Section 223 BNSS and Section 138 NI Act
Sanjabij Tari v. Kishore S. Borcar (Supreme Court, 2025): The Supreme Court issued directions to speed up cheque bounce trials. Among them, it made clear that magistrates need not issue a pre-cognizance summons to the accused under Section 223 BNSS in Section 138 cases.
Ashok v. Fayaz Aahmad (Karnataka High Court, May 2025): The Court held that the proviso does not apply to Section 138 complaints. It reasoned that the NI Act is a special law and that a special law prevails over a general one. It also declined to follow an earlier coordinate bench view.
Jasveer Singh v. Jugal Kishore (J&K and Ladakh High Court, January 2026): Relying on Sanjabij Tari, the Court held that once the basic ingredients appear, the magistrate can take cognizance without a prior hearing. It also held that a later civil suit by the accused cannot derail the prosecution.
Meghalaya High Court (16 March 2026): The Court reached the same conclusion and rejected the argument that the Supreme Court’s direction applied only to future cases.
What This Means for Complainants
For banks, NBFCs and businesses that file cheque bounce complaints, the position is helpful. You do not need to wait for a pre-cognizance hearing. Instead, the magistrate can take cognizance once your complaint shows the core ingredients. These are a cheque issued for a legally enforceable debt, its dishonour, a timely demand notice, and non-payment within 15 days.
However, practice still varies in some trial courts. Consequently, complainants should cite Sanjabij Tari and their own High Court’s ruling if the court proposes a pre-cognizance notice.
What This Means for the Accused
An accused cannot block cognizance simply by demanding a Section 223 hearing. Nevertheless, the accused keeps every defence at trial. For example, the accused can still dispute the debt, challenge service of notice or argue that the complaint is time-barred.
Practical Checklist for Section 138 Complainants
- Send the demand notice within 30 days of receiving the dishonour memo.
- Wait 15 days after the drawer receives the notice.
- File the complaint within one month after that period ends.
- Attach the cheque, return memo, notice, postal proof and debt documents.
- Cite Sanjabij Tari if the court proposes a pre-cognizance hearing.
For the full process, see our complete guide to cheque bounce cases under Section 138.
Frequently Asked Questions
Is a hearing before cognizance mandatory in cheque bounce cases?
No. Courts hold that the Section 223 BNSS proviso does not apply to Section 138 NI Act complaints.
What does the first proviso to Section 223 BNSS say?
It bars a magistrate from taking cognizance of a complaint without first hearing the accused.
Does Section 223 BNSS apply to other private complaints?
Yes. In Parvinder Singh (2026), the Supreme Court held the hearing mandatory in complaint cases, such as PMLA complaints.
Why are cheque bounce cases treated differently?
The NI Act is a special law with its own summary procedure, which prevails over the general BNSS procedure.
Can the accused still defend the cheque bounce case?
Yes. The accused can raise all defences at trial, including disputing the debt or the notice.
Need Help With a Cheque Bounce Case?
Lex Pleaders advises banks, NBFCs, businesses and individuals on Section 138 complaints, defences and appeals. Write to us at lexpleadersindia@gmail.com to discuss your matter.
Disclaimer: This article offers general information only and does not constitute legal advice.