JUDGMENT - K. SUKUMARAN, J. :---The petitioners had issued certain cheques to the respondents, which on presentation, were not honoured by the Bank. This resulted in 11 complaints in relation to the 11 cheques, for offences punishable under section 138 of the Negotiable Instruments Act, 1881 and section 420 of the Indian Penal Code. The defence of the petitioners is not relevant at this stage. They were facing a trial by the Criminal Court. A challenge to the very constitutionality of section 138 of the Act, was felt worth attempting in the circumstances. The writ petition is accordingly filed, the Union of India and others being arraigned as the respondents.

2. A basic argument was advanced that the Amendment Act 66 of 1988 which introduces sections 138 and 138-A, would not fit in with Entries 45 and 46 of List I of 7th Schedule to the Constitution. One serious contention is about a presumption drawn under section 139 in favour of the holder that he received the cheque for the discharge of any debt or other liability. The section does not postulate 'mens-rea' as an ingredient of the offence. That, according to the petitioner, is against the basic concept of a crime in the criminal jurisprudence of this country. The act of issuing of cheque without any balance in Bank amounts to a criminal breach of trust, deceit, or cheating, and under the scheme of the Penal Code, mens-rea is postulated in respect of the offences covered under sections 405, 415 and 420 of the Indian Penal Code by the inclusion of the words "dishonestly", "fraudulently" and/or "intentionally". This aspect is referred to as a circumstances to support that submission that a harsher treatment under the Negotiable Instruments Act is unjustified. A vague and general ground of infraction of the provisions of Article 20 is also put forward. A further submission is that when the act of parties relates to civil rights of the parties, it is impermissible for the Parliament to make a law of a criminal nature making it an offence. Parliament's dictate not to take into consideration the circumstances under which there was a failure to pay, according to the petitioners, makes the provision unconstitutional.

3. We shall deal with the contentions seriatim.

4. The background in which Chapter XVII containing sections 138 to 142, was incorporated in the Act, are indicated in the statement of objects accompanying the Bill leading to the enactment. We extract below the pertinent passage:

"Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendments) Act, 1988 has inserted Chapter XVII in the Negotiable Instruments Act, 1981. The statement of objects and reasons appended to the Bill explaining the provisions of the new chapter read as follows :

"This clause (Clause 4 of the Bill) inserts a new Chapter XVII in the Negotiable Instruments Act, 1881. The provisions contained in the new chapter provide that where any cheque drawn by a person for the discharge of any liability is returned by the Bank unpaid for the reason of the insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the bankers for that account, the drawer of such cheque shall be deemed to have committed an offence. In that case, the drawer, without prejudice to the other provisions of the said Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both.

The provisions have also been made that to constitute the said offence ---

(a) such cheque should have been presented to the bank within a period of six months of the date of its drawal or within the period of its validity, whichever is earlier, and

(b) the payee or holder in due course of such cheque should have made a demand for the payment of the said amount of money by giving a notice, in writing,

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