The offense under Section 138 of the Negotiable Instruments Act, 1881 is committed only if payment was not made on demand after the return of the cheque, which occurred after the commencement of the amended Act, making the complaint maintainable.

SHAMSUDDIN, J.

This Criminal Revision Petition is directed against an order passed by the Court below holding that prosecution against the 1st respondent was not maintainable in view of Article 20(1) of the Constitution of India.

2. Short facts which are necessary for determination of the question raised in the Criminal Revision Petition are as follows : Ist respondent approached the petitioner herein for a loan of Rs. 17,000/- and represented that the amount would be returned within a month. The petitioner paid the amount. Towards the discharge of debt, 1st respondent drew a cheque in favour of the petitioner on the State Bank of India, Statue Branch, Thiruvananthapuram on 2-12-1988. On 8-41989, petitioner presented the cheque for encashment. The State Bank of India dishonoured the cheque with endorsement 'refer to drawer' of the same day. Thereupon, petitioner demanded payment of the amount through a registered notice dated 13-4-1989. Ist respondent received the same on 17-4-1989. As there was no response to the notice, nor any payment, petitioner filed a complaint before the lower Court on 19-5-1989 alleging that 1st respondent committed an offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as 'the Act') as amended by the Banking, Public Financial Institutions and Negotiable Instruments (Amendment) Act, 1988.

3. Ist respondent raised a preliminary objection before the lower Court that complaint is not maintainable in view of the bar contained in Article 20(1) of the Constitution.

4. Section 138 of the Act came into force only on 1-4-1989 (See Gazette of India dated 29-3-89 Part 11-3-11). The Court below held that inasmuch as cheque was drawn on 2-12-1988, before the commencement of the Act, the complaint is not maintainable in view of Article 20(1) of the Constitution of India.

5. One of us (Thomas, J.) had occasion to consider the question whether prosecution was maintainable in a similar situation in Paramjith Singh v. Job, 1989(2) KLT 740. It was held in that case that though cheque was drawn before the coming into force of the Act, the prosecution was maintainable as the failure to pay the amount on demand after dishonour of cheque was subsequent to the commencement of the Act.

6. When this Revision Petition came up for consideration before a learned single Judge, he entertained doubt about the correctness of the decision and thought that Paramjit Singh's case (supra) requires reconsideration by a Division Bench. It is thus that the matter came before us.

7. The Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (Act No. 66 of 1988) brought about certain amendments to the Negotiable Instruments Act, 1881 as well as to some other enactments. Section 4 of the Amendment Act inserted Chapter XVII in the Negotiable Instruments Act. Section 138 is a new provision introduced in. Chapter XVII. In order to appreciate the contentions raised, it is profitable to refer to Section 138 which reads as follows :

"138. Dishonour of cheque for insufficiency, etc. of funds in the account. Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished 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 :

Provided that nothing contained in this section shall apply unless

(a) the cheque has been presented to the bank within a period o