The offence under S.138 of the Negotiable Instruments Act is completed when the drawer fails to make payment within the specified period, not at the time of drawing the cheque.

1. Petitioner is the proprietor of Man-Jog Investments which is a financial enterprise. Two cheques issued by the petitioner to the respondent were dishonoured by the drawee bank. As the petitioner did not pay the amount covered by the two cheques, even after receiving notice of demand, the respondent filed a complaint alleging commission of offence under S.138 of the Negotiable Instruments Act, 1881 (for short 'the Act'). The Magistrate, who took cognizance of the offence, issued summons to the petitioner. This Criminal Miscellaneous Case is filed by the petitioner praying for quashing the complaint.

2. The two cheques in question were issued on 31-12-1988 (one for Rs.7,272/- and the other for Rs.10,369/-). The cheques were presented for encashment, but the drawee bank dishonoured them on 30-4-1989 with the endorsement "account closed". On 6-5-1989 respondent issued a notice to the petitioner demanding payment of the amount covered by the dishonoured cheques. No amount was paid by the petitioner. Hence the complaint was filed on 29-5-1989. These are the bare facts.

3. The complaint is sought to be quashed on two grounds: (1) Inasmuch as Sec.138 of the act came into force only on 1-4-1989 no prosecution is maintainable in respect of the cheques issued on 31-12-1988. (2) As the cheques were issued from Bangalore, the court at Ernakulam has no jurisdiction to try the offence.

4. Petitioner did not even appear before the court which issued summons to him where he could raise the objections regarding territorial jurisdiction. However, in view of S.179 of the Code of Criminal Procedure (for short'the Code') the court within the limits of whose jurisdiction the consequence ensues has also territorial jurisdiction to try the case. Hence it is not necessary to consider the question of jurisdiction now. Be that as it may, it is still open to the petitioner to raise the question of jurisdiction in the trial court, since I am not pronouncing my decision on that question in these proceedings finally. I will advert to the first point raised as it involves a fundamental right embodied in Art.20(1) of the Constitution of India. It reads thus:

"No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence".

5. It cannot possibly be disputed, in the light of the clear constitutional safeguard, that if the facts constituting the offence had taken place before introduction of S.138 of the Act, the prosecution is bad and is liable to be quashed. Hence the real question is whether the commission of offence under S.138 of the Act is performed by drawing the cheques. Central Act 66 of 1988 by which S.138 was inserted in the Act has been brought into force on 1-4-1989. It is contended that since the cheques were issued on 31-12-1988, petitioner cannot be deemed to have committed the offence on any day subsequent to the introduction of S.138 in the Act. The main body of S.138 reads thus:

"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".

The main body of the section is subject to the proviso which consists of three clauses. The