The Gauhati High Court has set aside an order passed by a trial court that directed issuance of notice to accused persons before taking cognizance in a cheque dishonour case. The court held that such a step was legally unsustainable in view of a recent Supreme Court ruling clarifying the procedure under the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
The order was passed by Justice Manish Choudhury while hearing a criminal revision petition filed by PD Savera LLP.
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Background of the Case
The case arose from a complaint filed by PD Savera LLP against Galacon Infrastructure and Projects Pvt. Ltd. and two of its directors. The complainant alleged that a cheque of ₹10 lakh issued by the company was dishonoured upon presentation.
According to the complaint, the cheque was issued in discharge of a legally enforceable liability. The complainant stated that both directors were in charge of the day-to-day affairs of the company and were therefore liable under Section 138 of the Negotiable Instruments Act.
The complaint was registered as N.I. Case No. 5075 of 2025 before the Judicial Magistrate First Class, Kamrup (Metro), Guwahati.
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Trial Court’s Order
After examining the complaint and the affidavit evidence, the Magistrate found sufficient grounds to proceed. However, instead of directly taking cognizance, the court issued a notice to the accused persons, asking them to show cause why cognizance should not be taken against them.
The Magistrate relied on Section 223 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which requires giving the accused an opportunity of being heard before taking cognizance.
Aggrieved by this approach, the complainant moved the Gauhati High Court through a criminal revision petition.
Court’s Observation
Justice Manish Choudhury examined the legal position in light of a recent Supreme Court judgment in Sanjabij Tari vs Kishore S. Borcar (2025).
The High Court noted that the Supreme Court had clearly held that cases under Section 138 of the Negotiable Instruments Act are governed by a special law. As a result, the requirement of issuing notice before taking cognizance, as mentioned in Section 223 of BNSS, does not apply to cheque dishonour cases.
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“The Supreme Court has clarified that there is no requirement to issue notice to the accused at the pre-cognizance stage in complaints under Section 138 of the NI Act,” the court observed.
The High Court also pointed out that both the trial court’s order and the Supreme Court judgment were passed on the same date - 25 September 2025 - but the trial court did not have the benefit of the apex court’s ruling at the time.
Decision of the High Court
Setting aside the impugned order, the Gauhati High Court held that the Magistrate had committed a legal error by issuing notice before taking cognizance.
“The impugned order suffers from infirmity and is liable to be quashed to the extent it directs issuance of notice at the pre-cognizance stage,” the court said.
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The High Court allowed the revision petition and directed the trial court to take a fresh decision on cognizance and issuance of process strictly in accordance with law.
The petitioner was also directed to place a certified copy of the High Court’s order before the trial court for further proceedings.
With these observations, the criminal revision petition was allowed.
Case Title: PD Savera LLP vs Galacon Infrastructure & Ors.
Case No.: Crl. Rev. P. No. 5 of 2026
Decision Date: 9 January 2026
