- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 97 OF 2008 Subrata Kumar Roy Applicant vs. M/s. National & Co. Anr. Respondents Mr.A. A. Garge with Yogesh Doke, Advocates for the applicant. Mr. K. V. Saste, APP for the respondent-State. CORAM : D. G. KARNIK, J. DATE : MARCH 13, 2008. PC 1. Heard. 2. This revision application is directed against the judgment and order dated 8th February 2008 passed by the 3r Ad-hoc Additional Session judge, Raigad, in dismissing the Criminal Appeal No. 40 of 2006. By the said judgment the appellate court confirmed the decision of J.M.F.C. Panvel convicting the revision applicant under section 138 of Negotiable instruments Act and sentencing him to simple imprisonment till rising of the court and directing him to - 2 - pay compensation of Rs.75,000/- and in default to suffer simple imprisonment for a period of four months. 2. The applicant issued two cheques of Rs.25,000/- each to the complainant towards discharge of his liability of price of the flat purchased by him from the complainant. According to the applicant, there were defects in the flat and therefore, he issued notice to the complainant not to encash the two cheques. Despite this notice, the complainant presented the cheques and on their dishonour, filed the complaint. 3. The learned counsel for the revision applicant raised following points before me. (i) The cheques should not have been presented for payment by the complainant as there was failure of consideration in as much as there were defects in flat. (ii) The power of attorney holder who had filed the complaint was not duly authorized. As the power of attorney was not duly notarized it was invalid. Complaint was therefore, not maintainable. 4. Admittedly cheques were issued towards discharge of pre-existing liability namely price of the flat purchased - 3 - by him. If there were defects in the flat as alleged, it was open to the appliant to file a suit for damages for the alleged defects. It cannot be said that the said cheques were issued without any consideration or not towards any pre-existing iability. Hence, this defence is without any merits. 5. As regards power of attorney not being properly notarized, the learned counsel for the applicant was not able to point out any law which requires the power of attorney to be notarized. Section 85 of the Evidence Act only raises a presumption as to the execution of a power of attorney executed and authenticated before a Notary public. Even a non-notarised power of attorney is valid but only would be required to be proved without the aid of presumption. In the circumstances, there is no merit in the second defence raised by the applicant. 6. No other point has been raised by the learned counsel for the applicant. The revision application is dismissed summarily. Sd/- [ D. G. KARNIK, J.]