K S ANTO Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is the accused in two criminal cases, instituted on private complaints filed by third respondent before fourth respondent for offences punishable under S.138 of the Negotiable Instruments Act.

(2.) In this original petition, he wants S.138 and 142 of the Negotiable Instruments Act declared unconstitutional and prohibit fourth respondent from going ahead with trial of the cases.

(3.) In support of his case that S.138 and 142 of the Act are unconstitutional, following facts were placed before me. Under S.140 even the absence of reasonable belief that cheque will be dishonoured on presentment will not be a defence in a prosecution under S.138. Making an act done without mens rea an offence is illegal and arbitrary. A combined reading of S.138 and 142 shows that date of commission of the offence cannot be ascertained. According to him, at any rate, a postdated cheque cannot come under S.138. A cheque drawn for the discharge of a legally enforceable liability alone could form the subject matter of an offence punishable under S.138. Magistrate, who is empowered to try the offence, will not be competent to decide whether cheque was drawn for the discharge of a legally enforceable debt or other liability and it will have to be decided by a competent civil court. Therefore, penal provision is unworkable. Section is violative of Art.20(2) of the Constitution, because same offence is punishable under S.420 of the Indian Penal Code also.