[S. 202 CrPC] Evidence Of Complainant's Witnesses Can Be Taken On Affidavit, Absence Of Affidavit On Record May Vitiate Proceedings: Kerala HC

Justice Bechu Kurian Thomas observed that the lack of conducting an enquiry under Section 202 would not vitiate the process but the lack of an affidavit on record would vitiate the process.

“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”, stated the Court.

The petitioners who were allegedly residing outside Kerala were accused 1 to 4 before Judicial First Class Magistrate's Court-XII, Thiruvananthapuram for an offence of cheque dishonour under Section 138 of the Negotiable Instruments Act. They have approached the Court challenging the summons and warrants issued against them without conducting an enquiry under Section 202 CrPC.

The issue involved was whether an inquiry under Section 202(1) of the CrPC was mandatory before summoning an accused residing outside the court's jurisdiction.

The Court stated that In Re: Expeditious Trial of Cases under section 138 of the N.I.Act 1881, the Apex Court had stated that evidence of witnesses on behalf of the complainant may be taken on affidavit in enquiry or trial for speeding up the trial of complaints filed under section 138 of the NI Act. It added, “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.”

Relying upon Sunil Todi and Others v. State of Gujarat and Another (2021), it was held that not conducting an enquiry under Section 202 CrPC would not vitiate the issuance of process if requisite satisfaction could be obtained from the materials available on record.

In the facts of the case, the Court stated that an enquiry under Section 202 CrPC was not conducted nor an affidavit in lieu of enquiry was filed nor was there any posting for enquiry.

Justice Thomas stated that the Magistrate issued the summons without having an affidavit on record. The Court said, “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 by the Magistrate is wrong in law.”

Accordingly, the Court allowed the petition and quashed the summons and warrants issued against the petitioners. It directed the Judicial First Class Magistrate's Court-XII, Thiruvananthapuram to proceed from the stage of enquiry under section 202 CrPC afresh and also permitted the complainant to file an affidavit as per law.

Counsel for Petitioners: Advocates Arun Samuel, Jithin Babu A

Counsel for Respondents: Advocate M Sreekumar, Public Prosecutor Sreeja V

Citation: 2024 LiveLaw (Ker) 228

Case title: Carnival Films Pvt. Ltd. v State of Kerala

Case number: CRL.MC NO. 10593 OF 2023

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