Biju Gopinathan Nair vs John George (Died) on 5 October, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl Rev Pet No. 3594 of 2007()


1. BIJU GOPINATHAN NAIR, AGED 57 YEARS,
                      ...  Petitioner

                        Vs



1. JOHN GEORGE (DIED)
                       ...       Respondent

2. THE STATE OF KERALA

3. SOSAMMA GEORGE,W/O. JOHN GEORGE

4. JUDY GEORGE,D/O. LATE JOHN GEORGE

5. ANNIE GEORGE,D/O.LATE JOHN GEORGE

                For Petitioner  :SRI.S.SHANAVAS KHAN

                For Respondent  : No Appearance

The Hon'ble MR. Justice V.RAMKUMAR

 Dated :05/10/2007

 O R D E R
                              V. RAMKUMAR, J.
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                        Crl. R.P. No. 3594 OF 2007
                  ````````````````````````````````````````````````````
                  Dated this the 5th day of October, 2007

                                    O R D E R

In this Revision filed under Section 397 read with Sec. 401

Cr.P.C. the petitioner who was the accused in C.C. No.328/2005 on the

file of the J.F.C.M.-I, Pathanamthitta challenges the conviction entered

and the sentence passed against him for an offence punishable under

Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to

as ‘the Act’).

2. I heard the learned counsel for the Revision Petitioner and

the learned Public Prosecutor.

3. The learned counsel appearing for the Revision Petitioner

re-iterated the contentions in support of the Revision. The courts below

have concurrently held that the cheque in question was drawn by the

revision petitioner in favour of the complainant on the drawee bank, that

the cheque was validly presented to the bank, that it was dishonoured

for reasons which fall under Section 138 of the Act, that the

complainant made a demand for payment by a notice in time in

accordance with clause (b) of the proviso to Section 138 of the Act and

that the Revision Petitioner/accused failed to make the payment within

15 days of receipt of the statutory notice. Both the courts have

considered and rejected the defence set up by the revision petitioner

while entering the above finding. The said finding has been recorded

Crl.R.P.No.3594/07
: 2 :

on an appreciation of the oral and documentary evidence. I do not find

any error, illegality or impropriety in the finding so recorded concurrently

by the courts below. The conviction was thus rightly entered against

the petitioner.

4. What now survives for consideration is the question as to

whether a proper sentence has been imposed on the Revision

Petitioner. I am, however, inclined to modify the sentence imposed on

the revision petitioner provided he complies with the condition

hereinafter mentioned. Accordingly, if the revision petitioner pays to

respondents 3 to 4 who are the legal heirs of deceased 1st respondent/

complainant in equal shares by way of compensation under section 357

(3) Cr.P.C. a sum of Rs.3,00,000/- (Rupees three lakhs only) within five

months from today, then he need to undergo only imprisonment till the

rising of the court. If on the other hand, the revision petitioner commits

default in making the payment as aforesaid, he shall undergo simple

imprisonment for three months by way of default sentence. Money, if

any, paid by the revision petitioner pursuant to the orders, if any, passed

by the lower appellate court shall be refunded to the revision petitioner.

This Revision is disposed of confirming the conviction but

modifying the sentence as above.

(V. RAMKUMAR, JUDGE)
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