Kerala High Court
Carnival Films Pvt. Ltd vs State Of Kerala on 3 April, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
WEDNESDAY, THE 3RD DAY OF APRIL 2024 / 14TH CHAITHRA, 1946
CRL.MC NO. 10593 OF 2023
AGAINST CC NO.996 OF 2021 OF JUDICIAL MAGISTRATE OF FIRST
CLASS-XII, THIRUVANANTHAPURAM
PETITIONERS/ACCUSED 1 TO 4:
1 CARNIVAL FILMS PVT. LTD.
CARNIVAL HOUSE,
BEHIND DINDOSHI FIRE STATION,
OFF. GENERAL A.K.VAIDYA MARG,
MALAD (EAST), MUMBAI,
MAHARASHTRA, PIN - 400097.
REPRESENTED BY ITS DIRECTOR
PRASANTH NARAYANAN,
AGED 50 YEARS, S/O NARAYANAN NAIR,
CARNIVAL HOUSE,
BEHIND DINDOSHI FIRE STATION,
OFF. GENERAL A.K.VAIDYA MARG,
MALAD (EAST), MUMBAI,
MAHARASHTRA, PIN - 400097
2 SUNIL PUTHEN VEETIL
AGED 56 YEARS,
S/O. VADAKE VEETIL NARAYANA MARAR,
FORMER CHIEF EXECUTIVE OFFICER,
CARNIVAL HOUSE,
BEHIND DINDOSHI FIRE STATION,
OFF. GENERAL A.K.VAIDYA MARG,
MALAD (EAST), MUMBAI,
MAHARASHTRA, PIN - 400097
3 KUNAL SAWHNEY
AGED 40 YEARS, S/O SOMNATH SAWHNE,
FORMER ADDITIONAL DIRECTOR,
CARNIVAL FILMS PVT. LTD.,
CARNIVAL HOUSE,
BEHIND DINDOSHI FIRE STATION,
OFF. GENERAL A.K.VAIDYA MARG,
MALAD (EAST), MUMBAI,
MAHARASHTRA, PIN - 400097
Crl.M.C. No.10593/23 -:2:-
4 RENI VARUGHESE
AGED 49 YEARS,S/O A.M.VARUGHESE,
FORMER ADDITIONAL DIRECTOR,
CARNIVAL FILMS PVT. LTD.,
CARNIVAL HOUSE,
BEHIND DINDOSHI FIRE STATION,
OFF. GENERAL A.K.VAIDYA MARG,
MALAD (EAST), MUMBAI,
MAHARASHTRA, PIN - 400097
BY ADVS.
SRI.ARUN SAMUEL
SRI.JITHIN BABU A
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 MALABAR COMMERCIAL PLAZA PVT. LTD
HAVING ITS REGISTERED OFFICE AT 41/2299,
3RD FLOOR, MALABAR GATE,
RAM MOHAN ROAD, PUTHIYARA P. O.,
CALICUT DISTRICT,
KERALA, PIN - 673004,
REPRESENTED BY ITS AUTHORIZED REPRESENTATIVE
SHADULY HASSAN,
AGED 39 YEARS, S/O HASSAN T.,
RESIDING AT SAYOOK,
KOODATHUMPOYIL, KACHERI ROAD,
KAKKODI P.O., CALICUT DISTRICT,
KERALA, PIN - 673611
BY SRI. M.SREEKUMAR
SMT. SREEJA V., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 25.03.2024, THE COURT ON 03.04.2024 PASSED THE
FOLLOWING:
Crl.M.C. No.10593/23 -:3:-
BECHU KURIAN THOMAS, J.
--------------------------------
Crl.M.C. No.10593 of 2023
---------------------------------
Dated this the 3rd day of April, 2024
ORDER
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
by the Magistrate is wrong in law.
10. Hence the summons issued to the petitioners in C.C.
No.996/2021 are hereby quashed and consequently, the
warrants issued against the petitioners are also set aside. The
Judicial First Class Magistrate's Court-XII, Thiruvananthapuram,
is directed to proceed in the above referred case, from the stage
of enquiry under section 202 Cr.P.C afresh, which shall be
completed within one month from the date of receipt of a copy of
this order. The complainant is given the liberty to file an affidavit
in lieu of such enquiry, and if so filed within the period
mentioned above, the Magistrate will be at liberty to act in
accordance with the observation in Sunil Todi's case (supra).
This Crl.M.C is allowed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
APPENDIX
PETITIONER'S/S' ANNEXURES
Annexure 1 TRUE COPY OF THE COMPLAINT NUMBERED AS
C.C. NO. 996/2021 DATED NIL FILED BY THE
2ND RESPONDENT BEFORE THE JUDICIAL
FIRST-CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM.
Annexure 2 TRUE COPY OF THE SUMMONS DATED
12.07.2021 ISSUED TO THE 1ST PETITIONER
IN C.C. NO. 996/2021 BY THE JUDICIAL
FIRST-CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM.
Annexure 3 TRUE COPY OF THE SUMMONS DATED
12/07/2021 ISSUED TO THE 2ND PETITIONER
IN C.C. NO. 996/2021 BY THE JUDICIAL
FIRST-CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM.
Annexure 4 TRUE COPY OF THE SUMMONS DATED
12/07/2021 ISSUED TO THE 3RD PETITIONER
IN C.C. NO. 996/2021 BY THE JUDICIAL
FIRST-CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM.
Annexure 5 TRUE COPY OF THE B DIARY EXTRACT OF C.C.
NO. 996/2021 BEFORE THE JUDICIAL FIRST-
CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM.
Annexure 6 TRUE COPY OF THE OFFICIAL MEMORANDUM
DATED 26/07/2021 ISSUED BY THIS HON'BLE
COURT.
Annexure 7 TRUE COPY OF THE STATUS OF C.C.
NO. 996/2021 BEFORE THE JUDICIAL FIRST-
CLASS MAGISTRATE'S COURT-XII,
THIRUVANANTHAPURAM RECEIVED FROM THE
WEBSITE OF E-COURTS.
RESPONDENT'S/S' ANNEXURES
Annexure R2(a) TRUE COPY OF THE AFFIDAVIT DATED
30.06.2021 FILED BY AUTHORISED
REPRESENTATIVE OF THE 2ND RESPONDENT IN
CC NO.996/2021 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-XII,
THIRUVANANTHAPURAM
Annexure R2(b) TRUE COPY OF THE AFFIDAVIT DATED
30.06.2021 FILED BY AUTHORISED
REPRESENTATIVE OF THE 2ND RESPONDENT IN
CC NO.996/2021 BEFORE THE JUDICIAL FIRST
CLASS MAGISTRATE COURT-XII,
THIRUVANANTHAPURAM
