The presumption under Section 139 of the NI Act does not apply to cash cheques; thus, the complainant must substantiate the prosecution with evidence.

ORDER :

1. Whether the presumption under section 139 of the Negotiable Instruments Act is available in a prosecution based on a “cash cheque” is the question to be decided in this case. The Revision Petitioner is the accused in S.T. No.187/2019 on the file of the Judicial Magistrate of First Class-IV, Kollam. The above case was filed by the 2^nd respondent herein alleging offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'). (Hereinafter, the petitioner and the 2^nd respondent are mentioned as the accused and the complainant, respectively.)

2. The case of the complainant in brief, as per the complaint, is as follows:-

The complainant is a building contractor. The accused and the complainant are known to each other. The accused entrusted the complainant to construct a house for her for an amount of Rs.24,00,000/-, including the labour and material charges, etc. Thus, the complainant started construction and accused paid Rs.5,00,000/- as an advance. Out of Rs.5,00,000/- an amount of Rs.2,50,000/- was transferred to the account of the complainant on 03/05/2017, and Rs.2,50,000/- to the accounts of persons supplying the materials for the construction as advised by the complainant. The complainant continued the work and completed a major part of the work, for which an amount of Rs. 10,50,000/- is due to him. But the accused failed to pay a further amount apart from the advance she had made. Thus, the complainant decided not to continue the work without payment from the accused. The complainant made several requests to settle the amount for the work which he had already done. Thereafter, a dispute arose between them, and the accused decided to complete the work with another contractor. As per the work completed, the accused owed Rs. 5,50,000/- to the complainant and after mediation talks, it was agreed between them to settle the issue for an amount of Rs.4,00,000/-. Thus, on 29/08/2017, the accused issued a cheque bearing No. 657542 of the Vijaya Bank, Kollam branch dated 29/08/2017 for an amount of Rs.4,00,000/-. The accused made him to believe that the cheque would be honoured on presentation after two months. Believing the word of the accused, the complainant presented the cheque at the Vijaya Bank, Kollam branch on 30/10/2017. But the same was returned due to insufficient funds in the account of the accused, and the complainant got intimation regarding the same. Hence, the complainant sent a legal notice through his Advocate on 31/10/2017 and demanded payment of the cheque. The accused received the notice on 02/11/2017 and sent the reply through her counsel stating that it is a false allegation. But she did not care to pay the amount. Hence, the complaint was filed.

3. To substantiate the case, the complainant himself was examined as PW1. Exts.P1 to P6 were marked as exhibits on the side of the complainant. No defence evidence was adduced. On going through the evidence and the documents, the trial court found that the accused was guilty under Section 138 of the NI Act and she was sentenced to undergo simple imprisonment for a period of three months and to pay compensation of Rs.4,00,000/- (Rupees Four lakhs only) to the complainant under Section 357(3) of the CRIMINAL PROCEDURE CODE (for short 'Cr.P.C.'). In default of payment of compensation, the accused was directed to undergo simple imprisonment for a further period of one month.

4. Aggrieved by the conviction and sentence, the accused filed an appeal before th