In cheque dishonour cases filed under Section 138 of the Negotiable Instruments Act, 1881, the Supreme Court has held that an accused person does not have a right to be heard at the pre-cognizance stage.
In Sanjabij Tari v. Kishore S Borcar & Anr. [2025 INSC 1158], the Court clarified that the inquiry conducted by a Magistrate under Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), does not require the participation of the prospective accused.
The Court’s reasoning is based on the principle that proceedings under Section 138 of the N.I. Act are governed by a special statute. The purpose of the pre-cognizance inquiry in such cases is for the Magistrate to determine if a prima facie case is made out based on the complaint and the accompanying documents (the cheque, bank return memo, and demand notice).
In arriving at its decision, the Supreme Court referred to a judgment of the Karnataka High Court in Ashok v. Fayaz Aahmad [NC: 2025:KHC-D:6966].
The Court noted that this clarification was issued as part of a larger set of directives aimed at the speedy disposal of the vast number of pending cheque dishonour cases.
The rationale for this rule is rooted in the unique nature of cheque dishonour proceedings. These cases are considered quasi-criminal, meaning they function more like civil suits based on a clear documentary trail—the cheque, the bank’s return memo, and the statutory notice. The precise objective of the Negotiable Instruments Act is to provide a speedy relief to ensure the credibility of these instruments.
Therefore, the pre-cognizance inquiry need not extend beyond the Magistrate’s satisfaction of a prima facie case based on those documents. Hearing the accused at the pre-cognisance stage, before a summons is issued, would prematurely convert the inquiry into a “mini-trial,” causing undue delay and fundamentally defeating the core purpose of the law.
