Judicial application of mind is essential before cognizance; a mechanical order under an inapplicable provision cannot sustain summons.

Taking cognizance under Section 190 CrPC requires judicial application of mind to the complaint, affidavit and supporting materials before process is issued. A mechanical printed order without real consideration of the record is unsustainable, and where the complaint alleges offences under Sections 406, 409 and 120B IPC rather than a cheque dishonour offence under Section 138 of the Negotiable Instruments Act, cognizance on the wrong footing cannot stand. The cognizance order and summons issued against the accused were quashed.

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Issues: Whether the order taking cognizance and issuing summons was liable to be quashed for non-application of mind and for treating a complaint founded on allegations under the Indian Penal Code as a case under Section 138 of the Negotiable Instruments Act, 1881.

Analysis: Taking cognizance under Section 190 of the Code of Criminal Procedure, 1973 requires judicial application of mind to the contents of the complaint and materials filed. The impugned order was found to be a mechanical printed order, containing no real consideration of the complaint, affidavit, or documents. The complaint itself disclosed allegations under sections 406, 409 and 120B of the Indian Penal Code, not a cheque dishonour complaint attracting Section 138 of the Negotiable Instruments Act, 1881. The cognizance and process issued on that basis were therefore held to be unsustainable.

Conclusion: The cognizance order and the summons issued against the petitioner were quashed.

Ratio Decidendi: Cognizance is valid only when the Magistrate applies judicial mind to the complaint and determines that the allegations disclose the offence invoked; a mechanical order taken under a plainly inapplicable provision is non est and cannot sustain process.

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