M/s. Parsekar Associates, A Proprietary Concern of Shri Narahari Parsekar, F-1/11, St. Peter''s Building, Opp. Mapusa Clinic, Mapusa, Goa vs The EDC Ltd. and State

N.A. Britto, J.—Heard learned Counsel on behalf of the parties. The petitioner herein is an accused who runs his business in the name of M/s. Parsekar Associates. The respondent no.1 is a Company registered under the Companies Act, 1956.

The petitioner/accused had issued a cheque dated 17/01/2001 in the sum of Rs. 3.8 lacs in favour of the respondent no.1/complainant, drawn on Goa State Co-operative Bank Ltd., Patradevi Branch, towards the part payment of the liability, the accused had towards the said complainant, and the said cheque when presented by the complainant for payment, the same was returned unpaid on 1/02/2001 on the ground that "not arranged for". According to the complainant, the said cheque was not honoured because there were insufficient funds in the account of the accused. The complainant, therefore, sent a notice dated 7/02/2001, which was received by the accused, but was not replied to nor complied with and, as such, the complainant filed the complaint against the accused u/s 138 of the Negotiable Instrument Act, 1881 (the Act, for short).

In support of the complaint, the complainant/respondent no.1 examined its Manager and the learned trial Court by judgment dated 16/01/2009 convicted and sentenced the accused u/s 138of the Act. The accused has been directed to pay to the complainant compensation at the rate of Rs. 6.84 lacs and in default the accused has been directed to undergo further imprisonment for the period of three months. No substantive sentence has been imposed upon the accused.

The petitioner/accused having filed an appeal, the same came to be dismissed by the learned Additional Sessions Judge, Panaji, by judgment dated 26/02/2008.

This revision petition was adjourned from time to time to enable the parties to arrive at a settlement. From the submissions made on behalf of the complainant on 19/10/2010 before this Court it appears that the subject cheque was given in repayment of the loan taken. The property mortgaged by the petitioner has been sold for a sum of Rs.1.25 lacs and a balance of Rs.9,90,750/-remains to be paid.

At the hearing of this revision petition, Shri Bras De Sa, the learned Counsel appearing on behalf of the petitioner, has submitted that the complainant had produced only a xerox copy of the subject cheque which could not have been considered to be a Negotiable Instrument and, therefore, the accused could not have been convicted on the basis of the same. Shri Sonak, the learned Counsel on behalf of the complainant submits that the only plea in defence taken by the accused was that the subject cheque was give by him by mistake, a plea which was subsequently not pursued any further.

A perusal of the records, shows that the complainant had filed an application u/s 65(c) of the Evidence Act to produce xerox copy of the subject cheque stating that subsequently the original was lost. The said application was granted by the learned JMFC by order dated 8/12/2008. The petitioner did not challenge the said order before any Court nor took up the ground which has now been taken, before the Court of Sessions, at the time of the hearing of appeal. In such a situation, I am not inclined to accept the submission made by learned Counsel on behalf of the petitioner for two reasons; firstly, because this submission was not made before the learned appellate Court and, secondly, because the complainant was given leave to produce the said xerox copy because the original was lost, in accordance with Section 65(c) of the Evidence Act. The petitioner/accused had admitted his liability when he stated that the complainant''s officer had informed him that there was an outstanding amount of Rs.3.80 lacs. In case the accused had realised subsequently, that such an amount was not due, the accused would have written to the complainant or replied to the notice sent. Relying on G.V. Rao V/s. Kolla Veera Raghava Rao & Anr. (2006 Cr.L.J. 1) learned Additional Sessions Judge has rightly observed that failure to reply to the notice is a strong circumstance against the accused. The learned Additional Sessions Judge relying on K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, has rightly drawn the presumption in favour of the complainant u/s 139 of the Negotiable Instruments Act, as the signature on the cheque was admitted by the accused. There is absolutely no merit in this revision petition. The same is hereby dismissed.