In Absence of an Affidavit, Cognizance Taken by the Magistrate is Wrong in Law: Kerala High Court Quashes Summons in Section 138 N.I. Act Case

The Kerala High Court, in a landmark judgment by Justice Bechu Kurian Thomas, quashed the summons and warrants issued against Carnival Films Pvt. Ltd. and its directors, underscoring the vital legal tenet that cognizance taken without an affidavit is erroneous.

Legal Point: The Court's decision centers around the procedural requirement for an affidavit in cases under Section 138 of the Negotiable Instruments Act, 1881, as per Section 202 of the Code of Criminal Procedure, 1973.

Facts and Issues: The case, originating from C.C. No.996/2021 at the Judicial Magistrate of First Class-XII, Thiruvananthapuram, brought into question the legality of summons and warrants against the accused in a dishonor of cheque case. The crux of the issue was whether due procedure, especially the mandate for an enquiry under Section 202 Cr.P.C., was followed before issuing these legal documents.

Procedure Under Section 202 Cr.P.C. Not Followed: The Court observed that the Magistrate had issued summons without conducting any enquiry under Section 202 Cr.P.C or considering an affidavit from the complainant, thus leading to a wrong cognizance.

Supreme Court Precedents: References were made to key Supreme Court judgments including 'Re: Expeditious Trial of Cases under Section 138 of N.I. Act 1881' and 'Sunil Todi v. State of Gujarat', highlighting the necessity of affidavits or enquiries before cognizance.

Need for Materials on Record: The judgment emphasized that sufficient material on record is paramount for issuing process, underlining the absence of an affidavit as a critical flaw.

Decision: The Court annulled the summons and warrants against Carnival Films Pvt. Ltd. and its directors, directing the Magistrate to undertake a fresh enquiry per Section 202 Cr.P.C within a specified timeframe, allowing the complainant to submit an affidavit as an alternative.

 Date of Decision: April 3, 2024.

CARNIVAL FILMS PVT. LTD. AND OTHERS vs STATE OF KERALA