IMPORTANT POINT
When signature of a cheque is admitted to be that of accused, presumption under Sections 118 & 139 of Negotiable Instruments Act would arise.

N.A. Britto, J.—This is complainant’s appeal by special leave against the acquittal of the accused under section 138 of the Negotiable Instruments Act, 1881.

2. The parties hereto are being referred to in their names as they appear in the cause title of the complaint.

3. The complainant is the proprietor of M/s. P.V. Constructions and the accused is the proprietor of M/s. Ayswarya Constructions.

4. The case of the complainant was that the complainant was undertaking execution of civil works directly or under other contractors and the complainant executed some works for the accused who is also a civil contractor towards which the accused owed to the complainant an amount of Rs. 84,775. As per the complainant, through the intervention of mutual friends namely, (1) Mr. Balagopalan, Contractor, (2) Shri Caetano Colaco, Contractor, (3) Shri Luis, Contractor and (4) Joaquim Lobo, Junior Engineers in the office of the Works Division XIII, P.W.D., Mapusa, it was agreed between the accused and the complainant that the accused would pay a sum of Rs. 81,000 in full and final settlement and accordingly the accused issued two cheques in favour of the complainant, one for Rs. 40,000, post-dated 25.3.2002 and the other for Rs. 41,000, also post dated 25.4.2002 in the presence of S/Shri Balagopalan, Luis and Justin.

5. The complainant in this case pertained to Cheque No. 804287 dated 25.3.2005. As per the complainant he deposited the said cheque for collection in his South Indian Bank Limited, Panaji Branch, which sent it to Federal Bank Ltd., Panaji Branch and the same was returned dishonoured with remark “payment stopped by the drawer” which was communicated to the complainant’s bankers vide Memo dated 25.3.2002.

6. Further, the case of the complainant was that the complainant sent a demand notice, through his Advocate calling upon the accused to pay the said sum of Rs. 40,000 and the accused replied the said notice alleging that the said cheques were lost on 23.2.2002 and denied the issuance of the said cheques thus casting aspersions on the complainant and also denied his liability to pay the amount due. The complainant stated that the issue of cheques from the cheque book complained to be lost, reported to the police was a fraudulent act on the part of the accused. The complainant therefore filed the complaint on 30.4.2002 and in support of the complaint examined himself and Vinu Kuriakose P.W. 2 who was working at the relevant time with the Federal Bank Ltd., Panaji.

7. The complainant in his affidavit in evidence reproduced the averments of the complaint and in cross-examination he stated that he knew the accused for the last 10 years and had become his friend for the last about 2 to 3 years and that both of them were from Kerala. The complainant denied that the accused had not issued any cheques to him or that the accused did not owe the complainant any amount but admitted that the accused in his reply to the statutory notice had in fact stated that the cheque book was lost on 23.2.2002 and that in the said reply it was also mentioned that the accused had lodged the complaint as regards the said cheque book along with other items on 23.2.2002. The complainant also admitted that in the said reply sent by the accused, the accused did mention that the accused had informed the Bank on 25.2.2002 that the cheque book of the accused was lost and that the appellant for any cheque from the said cheque book should not be entertained. Vinu Kuriakose/P.W. 2 confirmed that the suit cheque was of their branch and that when the cheque is presented to the Bank for realisation, they identify the signature on the cheque with the specimen signature of the person available with the bank and it is passed for payment if there is balance in the account. A copy of the card containing the specimen signature of the accused was produced by Kuriakose/P.W. 2. with no objection from the accused. Kuriakose/P.W. 2 also stated that on 25.3. 2002 the accused