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

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