The duty of the complainant to establish the issuance of the cheque against the goods sold and the importance of documentary evidence in cases under Section 138 of the NI Act.

N.K. Mody, J.

1. This order shall also govern the disposal of Criminal Revision No. 199/2009 as both the petitions are arising out of one judgment.

2. Being aggrieved by the order dated 4.2.2009 passed by 1st ASJ, Shajapur in Criminal Appeal No. 79/2008, whereby the judgment dated 31.3.2008 passed by JMFC, Shajapur in case No. 30/2007, whereby the petitioner was convicted for an offence punishable under Section 138 of Negotiable Instruments Act (in short the 'N.I. Act'), was maintained and sentence of six months and fine of Rs. 1,00,000/-was modified by reducing the fine amount to Rs. 10,000/-, present petition has been fried.

3. Criminal Revision No. 185/2009 has been filed by the accused wherein the grievance is that conviction itself is bad in law and deserves to be set aside while Criminal Revision No. 199/2009 has been filed by the complainant, wherein the grievance is that the learned Appellate Court committed error in reducing the fine amount while the conviction was maintained. It is, therefore, both the petitions are being heard finally and decide by one order.

4. Short fact of the case was that a private complaint was filed by the respondent No. 1 on 26.12.2006 under Section 138 of NI Act alleging that the respondent No. 1 is resident of Shajapur and is carrying Hardware Store in the name and style of M/s. Kadari Hardware Stores. It was alleged that respondent No. 1 is the proprietor of the shop. It was alleged that the petitioner is carrying the business in the name and style of M/s. Mahavir Warehouse. It was alleged that petitioner is carrying a construction work of warehouse at village Sadarkhedi. It was alleged that petitioner was in need of iron pipes for his construction work. It was alleged that on 14.10.2006, petitioner purchased goods valuing Rs. 85,000/- from the shop of respondent No. 1. It was further alleged that after purchasing the pipes on 14.10.2006, a cheque of Rs. 85,000/- of Bank of India was issued by the petitioner on 25.10.2007. Further case of prosecution was that the said cheque was deposited by the respondent No. 1 with Nagrik Sahkari Bank Maryadit, Shajapur, but the same was returned with the memorandum having remark "insufficient funds". It was alleged that it is informed by the Nagrik Sahkari Bank to respondent on 23.11.2006. Thereafter, the respondent issued a notice to the petitioner. It was alleged that petitioner has committed an offence punishable under Section 138 of N.I. Act. It was prayed that after taking cognizance, the petitioner be convicted. After taking cognizance, the petitioner was served with the notice of the Court. After framing of charges and also after recording of evidence, the learned Trial Court convicted the petitioner against which an appeal was filed by the petitioner, which was allowed in part by maintaining the conviction but reducing the fine amount of Rs. 1,00,006/- to Rs. 10,000/-, hence both the parties have preferred the petition.

5. Mr. Manoj Saxena, learned Counsel for the petitioner in Criminal Revision No. 185/2009 argued at length and submits that learned Courts below has convicted the petitioner illegally while petitioner has not committed any offence. Learned Counsel further submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this revision. It is submitted that the learned 'Courts below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses.

6. Learned Counsel for the petitioner further submits that as per the complaint, the alleged transaction of sale of pipe took place on 14.10.2006 while the alleged cheque was issued on 25.10.2006, there is a variance between the pleadings and proofs. It is submitted that no documentary evidence has been produced by the respondent No. 1 in support of the alleged transaction. For this contention, reliance is placed on a decisio