Delhi District Court
Pawan Kumar vs Manoj Verma on 15 December, 2025
IN THE COURT OF SH. ABHISHEK GOYAL, ADDITIONAL
SESSIONS JUDGE-03, CENTRAL DISTRICT, TIS HAZARI
COURTS, DELHI
CNR No.: DLCT01-016143-2025
CRIMINAL APPEAL No.: 537/2025
PAWAN KUMAR,
S/o. Shri. Bhajan Lal,
R/o. Street No. 4, 91/4,
Block-B, Jagatpuri,
Krishna Nagar,
Delhi-110051. ... APPELLANT
VERSUS
MANOJ VERMA,
S/o. Shri. H.K. Verma,
R/o. H. No. B/38, First Floor,
Near Hind Tent House &
Two Side Wala Mandir,
Jagatpuri, Krishna Nagar,
Delhi-110051. ... RESPONDENT
Date of filing : 25.10.2025
Date of institution : 27.10.2025
Date when judgment was reserved : 07.11.2025
Date when judgment is pronounced : 15.12.2025
JUDGMENT
1. The present appeal has been preferred in terms of the provisions under Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS')/pari materia with Sections 372 of the Code of Criminal Procedure, 1973 (hereinafter, referred to as 'Cr.P.C./Code'), against the order dated 26.09.2025 (hereinafter referred to as 'impugned order'), passed by learned Judicial Magistrate First Class (Reliever)/Ld. JMFC (Reliever), Central Tis Hazari Courts, Delhi (hereinafter referred to as 'Ld. Trial Court/Ld. JMFC') in case bearing, 'Pawan Kumar v. Manoj Verma, CC NI Act No. 9892/2024', in a CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 1 of 20 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:24:37 +0530 complaint proceeding under Section 200 Cr.P.C. read with Section 138 of the Negotiable Instruments Act, 1881 ( hereinafter referred to as the 'NI Act'). Pertinently, by virtue of the impugned order, the Ld. Trial Court dismissed the said complaint on the aspect of its maintainability.
2. Succinctly, the genesis of the present proceedings is a complaint, filed by the appellant before the Ld. Trial Court in terms of the provisions under Section 200 Cr.P.C. read with Section 138 of the NI Act. Pertinently, under the said complaint, the appellant inter alia contended that the respondent came in contact with the appellant in the year 2010, and soon, friendly relation developed between him/the respondent and the appellant. As per the appellant, in the month of March, 2022, the respondent approached the appellant and expressed extreme urgency/imminent need of a friendly loan of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) for his personal needs and operation of business. Correspondingly, it was averred by the appellant, the respondent expressed the need/requirement of the said loan amount in three equal tranches of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand only) each, in the months of March, 2022; December, 2022 and March, 2023. The complainant's complaint further chronicles that as per the requirement of the respondent, the said loan amount of Rs. 7,50,000/- (Rupees Seven Lakhs Fifty Thousand only) was disbursed by the appellant to the respondent as per the aforenoted schedule. As per the respondent, the respondent promised/assured to the appellant that the said loan amount would be returned by December, 2023. However, it is the case of the appellant that in the month of December, 2023, a sum of Rs. 35,750/- (Rupees Thirty Five Thousand Seven Hundred and Fifty only) was CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 2 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:24:49 +0530 refunded/returned from the loan amount. Subsequently, the respondent is asserted to have issued a cheque bearing no. 000076, dated 28.05.2024 for a sum of Rs. 6,00,000/- (Rupees Six Lakhs only), drawn on Kotak Mahindra bank, Krishna Nagar branch, Delhi (hereinafter referred to as the 'cheque in question/dishonoured cheque') in favour of the appellant against part discharge of legal debt/liability, due. Congruently, as per the appellant, at the time of issuance of said cheque, the respondent assured the appellant that the balance amount of Rs. 1,14,250/- (Rupees One Lakh Fourteen thousand Two Hundred and Fifty only) would be refunded by the respondent to the appellant vide UPI mode in two installments, i.e., Rs. 20,000/- (Rupees Twenty Thousand only) on 05.06.2024; and Rs. 94,250/- (Rupees Ninety Four Thousand Two Hundred and Fifty only) on 05.07.2024.
2.1. As per the appellant, at the time of issuance of the aforesaid cheque, the respondent had assured to the appellant that the same would be honored on its presentation. Subsequently, on 05.06.2024, the respondent is further asserted to have paid a sum of Rs. 20,000/- (Rupees Twenty Thousand only) to the appellant vide UPI mode. Thereafter, on 17.06.2024, the appellant is proclaimed to have presented the cheque in question for encashment. However, despite the respondent's assurance, when the said cheque was so presented by the appellant for encashment with its banker, same was returned dishonoured vide cheque dishonour memo dated 19.06.2024 (hereinafter referred to as the 'return memo') with the remarks, 'Payment Stopped by Drawer '. Consequently, as per the revisionist, despite repeated appeals, the respondent refused to repay either the balance loan amount vide UPI amount or even clear the amount specified under the dishonoured cheque, despite repeated entreaties of the appellant.
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Ergo, the appellant is asserted to have issued a legal demand notice/notice dated 15.07.2024 (hereinafter referred to as the 'legal demand notice/demand notice') to the respondent. Markedly, upon receipt of the said notice, the respondent is asserted to have replied thereto vide reply/letter dated 26.07.2024, inter alia, denying any liability/debt due qua the appellant. Ergo, under such facts and circumstances, as aforenoted, the instant complaint came to be filed before the Ld. Trial Court by/on behalf of the appellant.
2.2. Markedly, upon such complaint being filed, Ld. Trial Court vide order dated 13.09.2024, issued notice to the respondent, in terms of the provisions under Section 223 of BNSS inter alia under the following observations;
"... Matter is at the stage of consideration on present complaint.
Ld. Counsel for the complainant submits that case was filed on 23.08.2024, Since date of filing is on or after 01.07.2024, the present case shall be considered under Bharatiya Nagarik Suraksha Sanhita, 2023. Section 223 First Proviso BNSS, 2023 provides that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
Let court notice be issued to proposed accused for NDOH, on filing of PF, within two weeks. Put up for consideration on ..."
(Emphasis supplied) 2.3. Subsequently, on the respondent entering appearance on a notice and on documents being provided by the appellant to the respondent, objection as to the maintainability of the present complaint was raised by/on behalf of the respondent. Relevantly, it was asserted by the respondent before the Ld. Trial Court that despite the cheque in question being issued for a sum of Rs. 6,00,000/- (Rupees Six Lakhs only), legal demand notice was CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 4 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:24:58 +0530 issued by the appellant to the respondent for a sum of Rs. 6,94,250/- (Rupees Six Lakhs Ninety Four Thousand Two Hundred and Fifty only). Ergo, it was argued by the respondent that since the legal demand notice was not valid as per mandate of law, the instant complaint was not maintainable. Consequently, upon the appellant and respondent addressing their respective arguments on the maintainability of the present complaint, as aforenoted, the instant complaint was dismissed by the Ld. Trial Court vide order dated 26.09.2025/impugned order inter alia under the following observations;
"... 8. Heard. Judgements perused. Considered.
9. It is a settled principle of law that legal demand notice to be valid has to be for the cheque amount. Any additional demand does not make legal notice invalid provided that it is severable and that an omnibus demand has not been made. For this the legal demand notice has to be seen in entirety.
10. Paragraph 6 of the legal demand notice, wherein the details of the cheque in question have been mentioned has already been reproduced. Last paragraph of the legal demand notice, where the demand was made is reproduced hereunder "I therefore, call upon you through this notice to pay Rs. 6,94,250/- (Rupees Six Lakhs Ninty Thousand Two Hundred Fifty Only)(sic) to my client within 15 days after receiving this legal notice, failing which my client shall constraint to take legal action against you at your cost, risk and consequences"
11. In the notice, while the details of the cheque has been mentioned, the demand has been made for the entire loan amount and not for the amount of cheque. Provision of Section 138 NIA is criminal in nature, therefore strict compliance with the technicalities has to be made. For a demand notice to be valid, demand has to be made for the "said amount". It has been held by the Hon'ble Supreme Court in the judgement of Suman Sethi (Supra), that the "said amount" means the amount of the cheque.
12. In the present complaint, since the demand in legal notice has been made for an amount more than the cheque amount, the present complaint is not CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 5 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL Date: GOYAL 2025.12.15 16:25:02 +0530 maintainable. The complaint is therefore dismissed. File be consigned to record room after due compliance..."
(Emphasis supplied)
3. Ld. Counsel for the appellant outrightly contended that the impugned order was passed by the Ld. Trial Court without properly appreciating the facts of the present case as well as by wrongly applying the law. Further, as per the Ld. Counsel, the impugned order is erroneous and contrary to settled law and has been passed by the Ld. Trial Court, in extreme haste as well as mechanically, without due application of mind to the factual and legal position. As per the Ld. Counsel, while passing the order of dismissal of the complaint, the Ld. Trial Court failed to consider that the demand of Rs. 6,94,250/- (Rupees Six Lakhs Ninety Four Thousand Two Hundred and Fifty only) in the legal demand notice was not a mistake, rather, a legitimate demand, including the cheque amount as well as the outstanding dues, lawfully recoverable by the appellant from the respondent. In this regard, Ld. Counsel further vehemently argued that the essence of legal demand notice under Section 138 NI Act is to give the drawer of said cheque, an opportunity to make payment of the cheque amount and the inclusion of additional lawful debts/dues does not invalidate a notice, if the cheque amount is clearly mentioned therein. Correspondingly, as per the Ld. Counsel, the superior courts have persistently avowed that a notice does not stand invalidated merely for the reason that it mentions a slightly higher amount, provided the drawer is made aware of the dishonored cheque and the cheque amount due. 3.1. Ld. Counsel for the appellant further submitted that the Ld. Trial Court erred in dismissing the complaint without CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 6 of 20 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:25:05 +0530 considering the settled principle that procedural or technical irregularities should not defeat the substantive justice, in cheque dishonoured matter. As per the Ld. Counsel, the impugned order is illegal, arbitrary and contrary to the spirit and intent of law/NI Act, which aims to ensure credibility of commercial transactions. Even otherwise, it was argued that the Ld. Trial Court failed to appreciate that the respondent suffered no prejudice due to the inclusion of additional amount/dues in the legal demand notice, as the cheque amount was clearly spelt out under the said notice. In fact, as per the Ld. Counsel, the respondent's reply dated 26.07.2024 to the legal demand notice, explicitly acknowledges the issuance of the cheque in question for a sum of Rs. 6,00,000/- (Rupees Six Lakhs only) and presentation thereof by the appellant. Ergo, it was submitted that the respondent/Ld. Counsel for the respondent was/were fully aware of the dishonored cheque and the amount due. Congruently, Ld. Counsel for the appellant vehemently reiterated that the Ld. Trial Court erred in failing to consider the said acknowledgement on the part of the respondent and passed the impugned order in utter haste, to the detriment of the respondent. Accordingly, Ld. Counsel fervently asserted that the Ld. Trial Court passed the impugned order, oblivious of the facts of the present case, settled judicial precedents as well as legal provisions, deserving the same to be set aside at the outset.
4. Per contra, Ld. Counsel for the respondent, entering appearance on an advance notice, challenged the maintainability of the present appeal. In this regard, Ld. Counsel for the respondent vehemently argued that no appeal would lie against the impugned order and that the present appeal is not maintainable even as per the provisions under Section 413 CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 7 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:09 +0530 BNSS. Even otherwise, it was argued that no illegality or impropriety can be attributed the impugned order, which was passed by the Ld. Trial Court whilst being cognizant of the law/legal provision, judicial dictates as well as the facts of the present case. In this regard, Ld. Counsel vehemently asserted that it is settled law that the penal provisions have to be strictly construed. Ergo, it was argued that considering that the amount specified under legal demand notice did not correspond with the dishonoured cheque amount, the instant complaint was rightly held to be not maintainable as per law, by the Ld. Trial Court. Consequently, Ld. Counsel for the respondent argued that the present appeal deserves to be dismissed at its outset, as contrary to provisions of law as well as not maintainable even on facts/law.
5. The arguments of Ld. Counsel for the appellant and that of the respondent have been heard as well as the record(s), including the Trial Court record(s), thoroughly perused.
6. Before proceeding further with the determination of the rival contentions of parties, i.e., Ld. Counsel for the revisionist and Ld. Addl. PP for the State, this deems it apposite to outrightly refer and reproduce the provisions under law/Section 413 BNSS1, as under;
"413. No appeal to lie unless otherwise provided- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Sanhita or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a 1 Pari materia provision under Section 372 Cr.P.C., which provides, "372. No appeal to lie unless otherwise provided-No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:*** Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." (Emphasis supplied) CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 8 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:25:13 +0530 lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."
(Emphasis supplied)
7. Pertinently, from a perusal of the aforesaid provision, it is quite manifest that the law explicitly provides that there shall lie, no appeal from any judgment or order of a criminal court, except, "...as provided for provided for by this Sanhita or by any other law for the time being in force ...". Clearly, it is seen from a conscientious perusal of the said provision that a right to appeal is not an inherent right, rather, purely derived out of statutory provisions/statutory right2, as conferred by the legislature. In so far as the scope and ambit of the provisions under Section 372 Cr.P.C. (pari materia with Section 413 BNSS) is concerned, reference is made to the decision of the Hon'ble Supreme Court in Mahabir v. State of Haryana, 2025 SCC Online SC 184, wherein the Hon'ble Court unambiguously noted in the said context, as under;
"53. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, i.e., that a victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. The plain reading of the statement of objects and reasons for introducing the proviso to Section 372 CrPC makes it clear that it wanted to confer certain rights on the victims. It has been noted therein that the victims are the worst sufferers in a crime, and they don't have much role in the court proceedings. They need to be given certain "rights" and compensation, so that there is no distortion of the criminal justice system. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal, but such appeal can 2 Milind Satish Sawant v. State of Maharashtra, 2025 SCC Online Bom 3081.
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also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed."
(Emphasis supplied)
8. Markedly, it is seen from above that the proviso to Section 413 BNSS/Section 372 Cr.P.C. confers right in favour of a victim to prefer an appeal, as a matter of right, against an order of acquittal of an accused or against an order of accused's conviction for a lesser offence or an order imposing inadequate compensation. Quite lucidly, the right of appeal conferred under the said provisions is clearly encompassed and limited therein, and cannot be extended to confer a right, even on a victim to challenge any or all orders of the trial court. In fact, the superior courts have persistently avowed that the right of appeal under Section 372 Cr.P.C. (pari materia with Section 413 BNSS) is quite limited in its scope, provision being self-contained in nature. Reference in this regard is made to the decision of the Hon'ble High Court of Delhi in Ashok Malhotra v. State (NCT of Delhi), 2019 SCC Online Del 10864, wherein the Hon'ble Court, noted in the context of foregoing, as under;
"18. A plain reading of the proviso to Section 372 of the CrPC indicates that the victim also has a right to prefer an appeal against an order passed by the Court in the following circumstances - (a) acquitting the accused; or (b) convicting the accused for a lesser offence; or (c) imposing inadequate compensation.
19. The proviso to Section 372 of the CrPC does not contemplate an appeal against an order of a Court imposing an inadequate sentence/punishment. It is well settled that there is no inherent right of an appeal and the said right is a statutory right and is available only if it is conferred by a statute. In several decisions, an appeal has been described as a creature of a statute. (See: Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh, (2014) 9 SCC
102). In National Commission for Women (supra), the Supreme Court had observed that "an appeal is a creature of a statute and cannot lie under any inherent CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 10 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:21 +0530 power". In view of the above, the contention that respondent no. 2 has an inherent right to appeal against an order of a court imposing inadequate punishment on the accused, is unmerited.
20. The proviso to Section 372 of the CrPC provides a limited right to the victim to file an appeal. The plain language of the said proviso indicates that it does not contemplate an appeal against an inadequate sentence."
(Emphasis supplied)
9. Here, this Court deems it pertinent to further make a reference to the decision of the Hon'ble Supreme Court in Celestium Financial v. A. Gnanasekaran, 2025 SCC Online SC 1320, wherein the Hon'ble Court remarked that a complainant under Section 138 NI Act, who suffers financial loss and injury on account of the dishonour of cheque, would qualify/fall within the meaning of 'victim', under Section 2(wa) Cr.P.C./Section 2(y) BNSS, so as to maintain an appeal under Section 372 Cr.P.C./Section 413 BNSS. Apposite at this stage, to reproduce the relevant extracts of the said dictate, as under;
"...7.9. In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed an offence under Section 138 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premised in accordance with proviso to Section 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right to prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 11 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:26 +0530 under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim of a dishonour of cheque who can file a complaint. Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person.
*** *** ***
8. The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal.
Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal on the grounds mentioned therein, when none exists.
9. In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 12 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:29 +0530 the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.
10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub-section (4) of Section 378 of the CrPC..."
(Emphasis supplied)
10. Ergo, in light of the foregoing discussion, the question that outrightly falls for consideration before this Court pertains to the maintainability of the present appeal against the impugned order, dismissing the appellant's complaint on the aspect of its maintainability, prior to issuance of summons/process qua the respondent. In other words, this Court has to determine, 'whether the dismissal of the appellant's complaint, prior to summoning of the respondent/accused can be challenged by way of a criminal appeal under Section 372 Cr.P.C./Section 413 BNSS?'. However, in order to deal with the said issue, this Court deems it pertinent to reproduce the relevant provisions under law/BNSS, as under;
"2263. Dismissal of complaint-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.3
Pari materia with Section 203 Cr.P.C., which provides, "203. Dismissal of complaint-If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. " (Emphasis sup-
plied) CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 13 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:25:33 +0530
2274. Issue of process-***(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.*** *** *** *** 279 . Non-appearance or death of complainant-5
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-
appearance of the complainant is due to his death."
(Emphasis supplied)
11. Markedly, it is seen from above that Section 226 BNSS/Section 203 Cr.P.C. envisages a situation of dismissal of criminal complaint where, "...after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 225, the Magistrate is of opinion that there is no sufficient ground for proceeding...". Correspondingly, as per Section 227 BNSS/Section 204 Cr.P.C., confers power on magistrate to 4 Pari materia with Section 204 Cr.P.C., which provides, "204. Issue of process-***(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint ***" (Emphasis supplied) 5 Pari materia with Section 256 Cr.P.C. which provides, "256. Non-appearance or death of complainant-(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:*** Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal atten - dance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case.*** (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appear- ance of the complainant is due to his death." (Emphasis supplied) CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 14 of 20 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:25:37 +0530 dismiss a criminal complaint for the reason(s) of non-payment/deposit of process fees or other fees, within a reasonable time. In contrast, Section 279 BNSS/Section 256 Cr.P.C. envisions a situation where the summons has already been issued on the complaint and on the date appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not enter appearance, either in person or through complainant's appointed counsel. Under such situation, law/Section 279 BNSS/Section 256 Cr.P.C. confers power on the court/Magistrate to acquit such an accused. Unmistakably, the difference between the provisions under Sections 226/227 BNSS on one hand and that under Section 279 BNSS on the other, is quite apparent, wherein while the former provisions deal with a situation, prior to the issuance of summons/summoning of an accused. In contrast, the latter provision (provision under Section 279 BNSS/Section 256 Cr.P.C.) deals with a case, subsequent to issuance of such summoning. Here, this Court deems it apposite to make a reference to the decision of the Hon'ble High Court of Delhi in Kalpana Tyagi v. Sneh Lata Sharma, 2003 SCC Online Del 273, wherein the Hon'ble Court, while expounding the appropriate legal recourse, available against the orders passed under the forenoted situations (in the pari materia provisions under Cr.P.C.), noted as under;
"8. A distinction, therefore, has to be drawn in regard to the complaints dismissed prior to the summoning of an accused and those dismissed subsequent to the summoning of the accused if a complaint is dismissed prior to the summoning of an accused the order may be challenged by way of filing a revision but once Section 256 comes into play, the dismissal of a complaint has the effect of acquittal of an accused and only an appeal can be filed under CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 15 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:42 +0530 Section 378 of the Code to challenge his acquittal."
(Emphasis supplied)
12. Correspondingly, the Hon'ble High Court of Himachal Pradesh in H.P. Agro Industries Corporation Ltd. v. M.P.S. Chawla, (1998) 92 Comp. Cas 686 (HP): (1997) 2 Crimes 591 (H&P): 1996 SCC Online HP 54, while dealing with the provisions under Section 256 Cr.P.C. (pari materia with Section 279 BNSS), noted as under;
"12. There is no denying that the dismissal of the complaint in default under Section 256 of the Criminal Procedure Code, entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal. Once a remedy by way of appeal is available to the petitioner under Section 378(4) of the Criminal Procedure Code, on the failure of the petitioner to avail of such a remedy, this court is not to exercise the inherent powers for interfering with the impugned order..."
(Emphasis supplied)
13. Ergo, in light of the foregoing, when the facts of the present case are conscientiously analyzed, it is observed that the Ld. Trial Court under its order dated 26.09.2025/impugned order, dismissed the appellant's complaint inter alia under the observation that since the legal demand notice was issued by the appellant for an amount, more than the dishonoured cheque amount, the instant complaint was held to be not maintainable. Correspondingly, it is seen from a conscientious perusal of the record of the Ld. Trial Court that when the said order/impugned order came to be passed by the Ld. Trial Court, neither cognizance of the offence, specified under the appellant's complaint was taken by the Ld. Trial Court, nor the consequent summons issued qua the respondent. Quite evidently, the impugned order was not passed by the Ld. Trial Court in terms of CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 16 of 20 Digitally signed ABHISHEK by ABHISHEK GOYAL GOYAL Date: 2025.12.15 16:25:45 +0530 the provisions under Section 279 BNSS/Section 256 Cr.P.C., so as to be construed to have an effect of respondent's acquittal. Ergo, in light of the foregoing discussion/judicial dictate, in the considered opinion of this Court, impugned order merely entailed dismissal of the appellant's complaint, in contrast to the respondent's acquittal, bringing it outside the purview of challenge under the appellant jurisdiction of this Court under Section 372 Cr.P.C./Section 413 BNSS. Needless in this regard to reiterate that Section 372 Cr.P.C./Section 413 BNSS confers limited right of appeal to a victim/complainant (as aforenoted) only in the instances of accused's acquittal or for accused's conviction for a lesser offence or where inadequate compensation has been imposed by the trial court. Unquestionably, the impugned order falls under neither of the said three categories, bringing it outside the purview of challenge under Section 413 BNSS/Section 372 Cr.P.C.
14. In as much as the contention of the Ld. Counsel for the appellant inter alia to the effect that the issuance of notice to the respondent by the Ld. Trial Court vide order dated 13.09.2024 would amount to summoning the respondent in the instant case is concerned, this Court unequivocally notes that it is not convinced with the contention of the Ld. Counsel for the appellant. In this regard, it is observed by this Court that the notice dated 13.09.2024 was issued by the Ld. Trial Court in terms of the provisions under Section 223 BNSS, which inter alia provides as under;
"223. Examination of complainant-(1) A Magistrate having jurisdiction while taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 17 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:49 +0530 complainant and the witnesses, and also by the Magistrate:
Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard:***"
(Emphasis supplied)
15. Remarkably, it is seen from a scrupulous reading of first proviso to Section 223(1) BNSS that it mandates affording opportunity of hearing to an accused/proposed accused, before cognizance of offence is taken. Unmistakably, the provisions under Section 223(1) BNSS are quite lucid, providing for prior hearing to an accused, before cognizance is taken by the Magistrate and summons issued in a given case, dispelling/belying the aforenoted contention of the Ld. Counsel for the appellant that the issuance of notice to the respondent by the Ld. Trial Court vide order dated 13.09.2024 amounts to issuance of summons to the said respondent. Needless to reiterate the notice was issued prior to the Ld. Trial Court's taking cognizance, only for limited purpose, as per the newly inserted provision (proviso) under Section 223 BNSS. Reference in this regard is made to the decision of the Hon'ble High Court of Delhi in Brand Protectors India (P) Ltd. v. Anil Kumar, 2025 SCC Online Del 5046, wherein the Hon'ble Court expressed similar sentimentalities, in the following terms;
"15. From the comprehensive reading of these two Sections, it becomes evident that though under Section 200 Cr. P.C. (now S. 223 BNSS) at the stage of pre-cognizance, no Notice was required to be served upon the accused, this aspect has undergone a change in Section 223 BNSS, to which the proviso is added that no Cognizance of an Offence can be taken without giving a prior opportunity to the accused of being heard.
*** *** ***
20. While under the erstwhile Section 200 Cr. P.C. and S. 202 Cr. P.C. (which are para materia with Section 223 and 225 of BNSS), it was clear that till CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 18 of 20 Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:54 +0530 the stage of Cognizance, the Accused had no role and it is only after the Cognizance was taken that summons were issued to the Accused. However, under the BNSS, there is a marked change as a procedural safeguard has been incorporated by way of first proviso to S. 223 (1) BNSS which mandates that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard.
21. On this change in the BNSS, the Calcutta High Court in Tutu Ghosh v. Enforcement Directorate, 2025 LiveLaw (Cal) 174, has observed that the Legislature, in its wisdom, has deliberately introduced the first proviso to Section 223, thereby conferring on the accused the right to have an opportunity of hearing at the pre-cognizance stage, despite the Legislature being obviously aware of the subsequent stages of a proceeding and criminal trial where a right of hearing is again given to the accused.
22. The Coordinate Bench of this Court in Neeti Sharma v. Saranjit Singh 2025 DHC 2367, has observed that the first proviso to Section 223(1) of BNSS puts an embargo on the power of the Court to take Cognizance upon a Complaint, by providing that no Cognizance of an Offence shall be taken by the Magistrate without giving the accused an opportunity of being heard. This proviso marks a substantive procedural safeguard that did not exist under the earlier regime.
*** *** ***
36. Similar interpretation has been given by the Karnataka High Court in the case of Sri Basanagouda R. Patil v. Sri Shivananda S. Patil, (Criminal PP No. 7526/2024) while interpreting Section 223 BNSS. It was held that while taking Cognizance of an Offence, a Magistrate should have with him a statement on oath of the Complainant and any witnesses present at the time of taking Cognizance under Section 223 BNSS. The stage of Cognizance comes only after the recording of the statement and only thereafter, the issue arises of giving a Notice to the Accused for the purpose of taking Cognizance. It was further explained that the proviso indicates that an accused should have an opportunity of being heard, which would not be an empty formality. Therefore, Complainant in terms of proviso to sub-section to S. 223 of BNSS, shall append the copy of the Complaint, the small statements of the Complainant and the witnesses, if any, for the accused to appear and submit his case before the cognizance is taken.CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 19 of 20 Digitally signed by ABHISHEK
ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:25:59 +0530
37. Thus, it may be concluded that Section 223 BNSS has reiterated the procedural framework of Section 200 Cr. P.C. with regard to examination of the Complainant and the witnesses, but has introduced significant departure that after the Complainant/witnesses as the Court may desire has been recorded, an opportunity of being heard be given to the accused before cognizance is taken..."
(Emphasis supplied)
16. Consequently, in light of the foregoing discussion and keeping in view the aforenoted judicial precedents, law as well as the submissions addressed before this Court, this Court unambiguously reiterates that the order dated 26.09.2025, passed by Ld. JMFC (Reliever), Central Tis Hazari Courts, Delhi in case bearing, 'Pawan Kumar v. Manoj Verma, CC NI Act No. 9892/2024', dismissing the appellant's complaint on the aspect of maintainability is not amenable to the appellate jurisdiction of this Court, in particular that under Section 413 BNSS/Section 372 Cr.P.C., for the aforesaid reasons. Accordingly, in light of the above, this Court unambiguously observes that present appeal deserves to be dismissed and is hereby dismissed, as not maintainable.
17. Trial Court Record be sent back along with a copy of this order/judgment.
18. Appeal file be consigned to record room after due compliance.
Digitally signed by ABHISHEK ABHISHEK GOYAL GOYAL Date:
2025.12.15 16:26:05 +0530 Announced in the open Court (Abhishek Goyal) on 15.12.2025. ASJ-03, Central District, Tis Hazari Courts, Delhi CR No. 537/2025 Pawan Kumar v. Manoj Verma Page 20 of 20