JUDGMENT :

AVINASH G. GHAROTE, J.

1. Heard Mr. Gaikwad, learned Counsel for the applicant and Mr. Salunkhe, learned Counsel for the respondent. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the rival parties.

2. The present application raises an interesting question regarding the presumption under Section 85 of the Indian Evidence Act, 1872. To understand the position appropriately, few facts are narrated as under:

The complainant is a partnership firm dealing in the business of publication of advertisement in the newspaper, local daily Navbharat. The applicant/accused is the Proprietor of M/s Reena Art Advertising Agency. It is alleged that there were transactions between the complainant and the accused, who caused to be published advertisements of his clients in ‘Navbharat’ through the complainant and on every gross bill amount, the accused was entitled to 15% commission. It is further stated that the accused had caused to be published four advertisements in the local daily ‘Navbharat’ through the complainant, of his client namely, Kashiba Sales and Vedita Agro/EDU Computer Private Limited on various dates i.e. on 19.11.2011, 11.11.2011, 24.11.2011 and 26.11.2011 respectively, as per the details given in Para-3 of the complaint (Page 23), in pursuance to which, four cheques dated 25.12.2011, 02.01.2012, 08.01.2012 all for Rs. 9,180/- each and a cheque dated 11.01.2012 for Rs. 7,650/- all drawn on Shikshak Sahakari Bank Ltd. Branch Panchpaoli, Nagpur, were claimed to have been issued by the accused/applicant in favour of the complainant. All these cheques were presented for realization by the complainant with its Bank namely, Bank of Maharashtra, Sitabuldi, Nagpur and were returned as dishonoured under the Bank Memos dated 04.01.2012, 11.01.2012, 17.01.2012 and 17.01.2012 respectively with an endorsement that there were insufficient funds in the account of the accused. A legal notice was issued on 25.01.2012 by the complainant through its Advocate Mr. J.S. Bamrah, which was sent on 28.01.2012 through RPAD demanding the aforesaid cheque amounts, which was claimed to have been served on and received by the accused/applicant on 30.01.2012 and there being no compliance a complaint came to be filed on 22.02.2012.

3. The learned Trial Court by the judgment dated 07.05.2013 has convicted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act and has sentenced him to suffer R.I. for three months. A further compensation under Section 357(3) of the Code of Criminal Procedure of Rs. 70,000/- has been directed to be paid to the complainant within one month from the date of order, in default, further R.I. for six months has been awarded. The appeal filed against this conviction and sentence came to be dismissed by the learned Sessions Court by the Judgment dated 07.07.2021, resulting in filing of the present revision.

4. Mr. Gaikwad, learned Counsel for the applicant contends, that the institution of the complaint itself was infirm in as much as though the complainant was a partnership firm, the complaint has been filed by one Mahesh Prasad Sarangi claiming to be authorized signatory/Power of Attorney (POA) of the firm. The complaint has been filed on 22.02.2012. Inviting my attention, to Exh.54 the Special Power of Attorney dated 03.06.2009, executed by the then partners of the firm, in favour of Mr. Mahesh Prasad Sarangi, he contends that, the said power of attorney does not bear the signature of the witnesses, nor does it bear the signature of the said Mahesh Prasad Sarangi in whose favour the same has been executed. It is further contended that the endorsement of the Notary thereupon merely states “attested” above the signature of the Notary. It is, thus, contended that, in view of the requirement of Section 85 of the Evidence Act there was no presumption available in respect of the Special Power of Attorney (Exh.54), as the same was not authenticated and