The offence under Section 138 of the Negotiable Instruments Act is committed when the cheque is dishonoured and returned to the complainant unpaid, and not when the cheque is issued.

This revision has been filed by the accused firm and its al leged partners against the order dated 10th June, 1991 passed by Additional Sessions Judge, Gyanpur allowing the revision preferred against the order dated 5-2-91 passed by the Judicial Magistrate, Gyan pur, dismissing the complaint under Sec tion 203 of the Code of Criminal Proce dure and discharging the accused under Sections 138/141/142of the Negotiable In struments Act (as amended by Act No. 66 of 1988) (for short the Act) and summon ing the accused-revisionist after setting aside the order.

2. The complainant, Oriental Rug Manufacturers through its proprietor Smt. Badrunnisa (hereinafter called the complainant) filed a complaint against M/s. Mahfooz Carpets, Smt. Asma Begum and Mahfooz Alam on the allegations that accused issued a cheque on 17th March, 1989 but it was dishonoured on 1st May, 1989. The complainant sent a notice on 10th May, 1989 giving opportunity to the accused to pay the amount mentioned in the cheque but with no result. The complainant prayed for punishing the accused under Sections 138/141/142 of the Act.

3. The learned Magistrate recorded the statements under Sections 200 and 202 Cr. P. C. and after hearing the complainant held that no offence was made out. He held that Section 138 and the following Sec tions were inserted in the Act by Act No. 66 of 1988 with effect from 1st April, 1989 and as the cheque was issued prior to the inser tion of this provision the accused cannot be said to nave committed any offence under this provision. He also held that in absence of evidence of collusion the of fence can be said to have been committed by the partners and on this ground as well the accused other than accused Farooq are not liable to be prosecuted. He further observed that according to the evidence adduced by the complainant accused No. 4 alone was looking after the affairs of the firm and he was responsible for the con duct of the business of the firm and as he has died, the other accused cannot be tried. He, therefore, dismissed the complaint.

4. The complainant, felt aggrieved, preferred revision which was decided by Additional Sessions Judge, Gyanpur. The learned Additional Sessions Judge held that the date of issuance of cheque was hardly of any relevance and as the memo intimating dishonouring of cheque was sent to the complainant on 1st May, 1989, this date is relevant for determining as to when the offence was committed. He held that as the offence punishable under Sec tion 138 of the Act was committed after the enforcement of amending Act 66 of 1988, the accused can be tried for the offences complained. He also held that the firm is liable for the offence under Section 138 of the Act. He, therefore, allowed the revision set aside the order passed by the Magistrate and summoned the accused. Felt aggrieved the accused came up in revision.

5. List revised. None appeared for the revisionists. Heard Sri R. N. Upadhyay, learned counsel for the O. Ps. 1 and 2 and Sri A. K. Singh, learned Additional Government Advocate.

6. In the grounds of revision it is alleged that on allegations contained in the complain the accused committed of fence on 17- 3-89 and as the amending Act 66 of 1988 came into force w. e. f. 1st April, 1989, the liability could not be fastened on the accused. This contention is untenable,

7. It is true that Chapter XVII con taining Sections 138 to 142 was added by the amending Act 66 of 1988, which came into force w. e. f. 1st April, 1989 and it is equally true that no one can be punished for a offence which was not an offence on the commencement of the Act constitute an offence. The real controversy is as to when the accused committed offence. The issuance of cheque is not an offence. No offence can be said to have been com mitted by the -accused when the accused issued cheque in favour of the complainant firm. The cause of action under the provisos (b) and (c) of Section 138 of the Act for filing complaint w