Section 268 BNSS discharge is unavailable in summons-triable cheque-dishonour cases.

The petitioner, complainant in a case under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”), alleged that the respondent had issued a cheque for ₹12,50,000 towards loans of ₹6,00,000 and ₹6,50,000.

The respondent sought discharge under Section 268 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), pointing to a legal notice that stated the cheque amount as ₹1,25,000.

The Magistrate allowed the application, and the Sessions Court dismissed the complainant’s revision, confirming that order.

The complainant then sought relief under Section 528 BNSS.

The High Court noted that the notice referred to the two loans and the total liability, notwithstanding the apparent amount errors.

1. Whether an accused in a prosecution under Section 138 of the NI Act, triable as a summons case, could be discharged under Section 268 BNSS

2. Whether the discrepancy in the cheque amount stated in the legal notice justified discharge at that stage

Section 138 of the NI Act is tried as a summons case, governed by Chapter XXI BNSS; that chapter contains no provision for discharging an accused before the plea is recorded and the trial proceeds.

Sections 267 and 268 BNSS concern the pre-charge evidence and discharge procedure in warrant cases, and Section 268 was therefore inapplicable to this summons-case prosecution.

The Court also referred to the presumption under Section 118 of the NI Act as raised by the complainant, but did not decide the merits of that presumption.

No judicial precedents were cited.

The Court held that the Magistrate could not use Section 268 BNSS to discharge the respondent because the Section 138 prosecution was a summons case, not a warrant case; the Sessions Court likewise failed to account for that distinction.

In any event, the stated discrepancy did not warrant discharge: the notice described loans totalling ₹12,50,000, and the reference to ₹1,25,000 appeared to be an error.

The Court also noted an apparent error in the complaint’s stated amount for the second loan, but treated these inconsistencies as matters insufficient to support discharge at that stage.

It restored the case to the Magistrate, directed that the respondent’s presence be secured and proceedings continue according to law, and directed the complainant to appear on 27 October 2026.