IMPORTANT POINT
The absence of an affidavit in lieu of inquiry under section 202 Cr.P.C. can invalidate the issuance of summons in cases under the N.I. Act if the materials on record do not provide sufficient satisfaction for the Magistrate's cognizance.

ORDER :

THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

Petitioners are accused 1 to 4 in C.C. No.996/2021 on the files of the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram. Petitioners challenge the summons issued to them and the consequential warrants issued by the Magistrate.

2. The first petitioner is a private limited company registered with the Registrar of Companies, Gwalior, engaged in various businesses. Petitioners are all allegedly residing outside Kerala. The second respondent is the complainant in C.C. No.996/2021 alleging an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (for short “N.I.Act”). After filing the case in 2021, the learned Magistrate had repeatedly adjourned the case till 23.11.2023, which compelled the second respondent to approach this Court in O.P.(Crl.) No.730/2023, and a direction was issued to dispose of the matter in a time-bound manner. Thereafter, the learned Magistrate advanced the case to 27.10.2023 and issued summons to all the accused.

3. On receipt of the summons, the accused have preferred this petition under section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C'), challenging the proceedings, contending that the trial court had issued summons without conducting any enquiry under section 202 Cr.P.C and contrary to the judgment of the Constitution Bench of the Supreme Court in Re: Expeditious Trial of Cases under section 138 of the N.I.Act 1881 (AIR 2021 SC 1957).

4. I have heard Sri. Arun Samuel, the learned counsel for the petitioners, Sri.M.Sreekumar, the learned counsel for the second respondent and Smt.V.Sreeja, learned Public Prosecutor.

5. In the decision In Re: Expeditious Trial of Cases under section 138 of the N.I.Act 1881 (AIR 2021 SC 1957) the Supreme Court held that section 145 of the N.I.Act has been brought in as an exception to section 202 Cr.P.C and evidence by way of affidavit was permitted to be given in any enquiry or trial which provision was inserted with the laudable object of speeding up trial of complaints filed under section 138 of the N.I.Act. It was further observed that if the evidence of the complainant can be given on affidavit, there was no reason to insist on the evidence of the witnesses to be taken on oath.

6. In Sunil Todi and Others v. State of Gujarat and Another (2021 SCC OnLine SC 1174) the Supreme Court observed that “it is not necessary for the Magistrate to postpone the issuance of process in each and every case. Further, it has also been held that not conducting enquiry under section 202 of the Code would not vitiate the issuance of process if requisite satisfaction can be obtained from the materials available on record.”

7. In the instant case, the proceeding on 27.10.2023 does not indicate that the Magistrate had perused any affidavit. When the case came up for consideration, the Registry of this Court was asked to obtain a report from the Magistrate whether any enquiry under section 202 Cr.P.C was conducted or not. By a communication dated 16-12-2023, the learned Magistrate has reported that records reveal that cognizance of the complaint was taken on 12-07-2021 and an affidavit in lieu of enquiry had not been filed nor was there any posting for enquiry.

8. In cases arising under the N.I.Act, even if an inquiry under section 202 Cr.P.C has not been conducted, the same cannot vitiate the issuance of process. The requisite satisfaction need only be available from the materials on record. If the materials on record are not sufficient to arrive at such a satisfaction, then the accused will be justified in stating that the absence of reference to any affidavit would vitiate the proceedings.

9. In the instant case, the learned Magistrate issued summons without having any affidavit on record. Having regard to the above circumstances, I am of the view that since the materials on record do not indicate any affidavit having been filed in lieu of enquiry under section 202 Cr.P.C, cognizance taken b