Kerala High Court
Unknown vs By Advs.Sri. K.Suresh on 15 July, 2017
Author: B. Sudheendra Kumar
Bench: B.Sudheendra Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
FRIDAY, THE 3RD DAY OF AUGUST 2018 / 12TH SRAVANA, 1940
WP(C).No. 25467 of 2018
(AGAINST THE CONVICTION AND SENTENCE IN S.T. NO. 187 OF 2016 DATED
15-7-2017 OF THE CHIEF JUDICIAL MAGISTRATE, THODUPUZHA)
PETITIONER(S)
VIJAYAKUMAR
S/O RAGHAVAN PILLAI, KOIKAL SHANMUGHA VILASAM HOUSE,
PERUNNA KARA, PERUNNA P.O. CHANGANACHERRY, KOTTAYAM-
686 102
BY ADVS.SRI. K.SURESH
SMT.DEEPTHI S.MENON
RESPONDENT(S):
1. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2. MATHEW ABRAHAM
S/O ABRAHAM, VETTIKKATTU HOUSE, KARIMANNOOR VILLAGE,
THODPUZHA TALUK, IDUKKI- 685 588.
R2 BY ADV. SRI.M.V.RAJENDRAN NAIR
BY GOVERNMENT PLEADER SRI.E.C. BINEESH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No. 25467 of 2018 (G)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBITP1 TRUE COPY OF THE JUDGMENT DATED 15-7-2017 IN S.T.
187/2016 OF THE CHIEF JUDICIAL MAGISTRATE COURT,
THODUPUZHA
EXHIBITP2 TRUE COPY OF THE JUDGMENT DATED 21-5-2018 IN CRL.
APPEAL 29/2018 OF THE COURT OF SESSIONS JUDGE,
THODUPUZHA
EXHIBITP3 TRUE COPY OF THE ORDER IN CRL RP NO.869/2018
DATED 20-07-2018 OF THE HON'BLE HIGH COURT OF
KERALA.
B. SUDHEENDRA KUMAR, J.
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W.P. ( C ) No. 25467 of 2018
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Dated this the 3rd day of August, 2018
JUDGMENT
The petitioner is the accused in S.T. No. 187 of 2016 on the files of the court below. The petitioner was convicted and sentenced by the courts below under Section 138 of the N.I.Act, invoking the provisions of Section 265 Cr.P.C. Against the said conviction and sentence, this Writ Petition has been filed.
2. Heard both sides.
3. The only contention of the petitioner is that the court below did not comply with the mandatory provisions of Section 265 B (4) Cr.P.C. and in the said circumstances, the conviction and sentence cannot be sustained. It appears from Ext. P1 that the court below did not comply with the provisions of Section 265 B(4) Cr.P.C. before passing the order impugned. The provisions of Section 264B (4) Cr.P.C. is mandatory [See the decision W.P. ( C ) No. 25467 of 2018 -2- of this Court in Joseph v. State of Kerala [2015 (4) KLT 364]. Since the mandatory provisions of Section 265B (4) Cr.P.C. were not complied with, Ext. P1 order cannot be sustained and consequently, I set aside the same.
In the result, this Writ Petition stands allowed, setting aside Ext. P1 order passed by the court below convicting and sentencing the petitioner under Section 138 of the N.I.Act and the matter is remitted to the court below with a direction to the court below to dispose of ST No. 187 of 2016 afresh in accordance with law, as expeditiously as possible and at any rate, within a period of four months from the date fixed for the appearance of the parties before the court below.
The parties shall appear before the court below on 5-9-2018 without further notice.
Sd/-B. SUDHEENDRA KUMAR, JUDGE.
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