The burden of proof lies on the complainant to establish the legally enforceable debt, and without documentary evidence, presumption under NI Act cannot be invoked.

JUDGMENT

T. Amarnath Goud, J. - Both the above criminal petition being Crl. Petn 43 of 2018 as well as criminal revision petition being Crl. Rev. Petn 27 of 2021 relate to judgment and order dated 22.05.2018 arising out of CR (NI) 34 of 2017 and thus these petitions have been disposed of by way of common judgment and order.

Crl. Petn 43 of 2018

2. The petitioner in this case is the complainant before the court of Judicial Magistrate, 1st Class cum Civil Judge (Sr. Division), Court No. 1, Udaipur, Gomati in CR(NI) 34 of 2017 under Section 138 of the NI Act filed against dishonor of Cheque bearing No. 997483 dated 12.06.2017 for an amount of Rs. 4,70,000/- and the court below has awarded punishment to the accused imposing him to Rs. 4,00,000/- and in default to pay the fine the accused would suffer R.I. for a period of three months.

Crl. Rev. Petn 27 of 2021

3. The petitioner in this criminal revision petition is the accused and respondent is complainant in CR(NI) 34 of 2017 which is disposed of on 22.05.2018. The court below against the cheque amount Rs. 4,70,000/-, awarded punishment imposing of paying Rs. 4,00,000/- to be paid by the accused to the complainant in default to pay the fine the accused would suffer R.I. for a period of three months. Aggrieved by the same, the accused preferred an appeal vide Crl.A. 19(2) of 2018 in Sessions Judge, Court, Gomati District, Udaipur and the said appeal has been discussed by the order dated 03.05.2021 confirming the trial court order dated 22.05.2018. Aggrieved thereby, the instant criminal revision petition has been filed by the accused.

4. For the sake of brevity, the parties herein are referred to as complainant and accused in Crl. Pet 43 of 2018 as well as in Crl. Rev. Petn 27 of 2021.

5. The brief facts of the case as per CR(NI) 31 of 2017 are as under:-

It is the case of the complainant that the complainant and the accused-respondent know each other and were also into monetary transaction. The accused-respondent used to borrow money from the complainant as and when required. On 09.04.2017 in the morning at 11 am the accused respondent borrowed an amount of Rs. 4,70,000/- (Rupees four lacs seventy thousand) from the complainant at his shop Duranta Travels, Lake city shopping complex, Udaipur in presence of (i) Utpal Datta S/o Suresh Chandra Datta, (ii) Swapan Das S/o Nimai Ch. Das both residents of Badarmokam & (iii) Mr. Pintu Saha S/o Haripada Saha of North Sataria for the purpose of his personal need with a condition to repay the sum by 15th of June 2017 but was in vain. On being approached by the complainant on 12.06.2017 the accused-respondent issued a Cheque bearing No. 997483 dated 12.06.2017 for an amount of Rs. 4,70,000/- only on State Bank of India, Udaipur Branch vide his account NO. 10515470637 in the house of the complainant again in presence of (i) Sri Utpal Datta, (ii) Swapan Das and (iii) Pintu Saha. The complainant for encashing the same on said date had deposited the said cheque vide no. 997483 dated 12.06.2017 for Rs. 4,70,000/- in his account 31455728000 with the State Bank of India, Udaipur Branch, Gomati Tripura. On 19.06.2017 the State Bank of India, Udaipur Branch returned the said cheque bearing no-997483 dated 12.06.2017 for Rs. 4,70,000/- issued by the accused with return slip to the complainant stating inter alia that due to 'Drawer's Sign Mismatch' the cheque has been dishonoured. On 12.07.2017 the complainant through his Advocate got issued a demand notice to the accused by registered post demanding to pay the cheque amount of Rs. 4,70,000/- failing which legal action shall be taken against him. On 24.07.2017 the accused p