TMI Blog1990 (3) TMI 373X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering Company, 40, Strand Road, Calcutta-1, by the petitioner-company acting through its managing director, i.e., the second petitioner, drawn on Indian Bank, Main Branch; Coimbatore. (b) In due course, the said cheques were presented with the complainant's bank, viz., Oriental Bank of Commerce, Strand Road, Calcutta, and the same were returned with the remarks exceeds arrangement . (c) On March 13, 1989, the complainant intimated the petitioner-company regarding the dishonour of the cheques and requested issue of a demand draft for the value of the cheques failing which it was told that the cheques would be presented again before the bank. (d) Accordingly, the said cheques were again presented with the complainant's bank on March 29, 1989, and the same were returned with the remark refer to the drawer on April 13, 1989. (e) On April 27, 1989, the complainant's firm thereupon issued a notice under-registered post with acknowledgment due to the petitioner-company intimating the dishonouring of the cheques and demanding payment within fifteen days of receipt of the said notice. (f) The petitioner-company, it was alleged, received the notice on May ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amended provisions of the Act came into force. Accordingly, it is contended that the entire proceedings are without jurisdiction. 7. Mr. Dipak Basu, learned counsel appearing for the complainant/opposite party, has contended that only upon dishonour of the cheques, cause of action would arise. Although the cheques might have been issued prior to the commencement of the amended provisions, but the subsequent dishonour of the cheques was made in April, 1989, after the amended provisions have come into force. He has contended that once the cheques bounced because of nonpayment, the payee is at liberty to deposit the said cheques once again in his bank account. In this case, after dishonour, the cheques were again presented in the bank and those were dishonoured after April 1, 1989. Accordingly, the proceedings are not without jurisdiction as contended by learned counsel appearing for the petitioners. 8. To appreciate the contentions, it is necessary to set out the relevant provision of Section 138 which has been inserted in the Negotiable Instruments Act, 1881, by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, [1989] 65 Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here any cheque drawn by a person for the discharge of any liability is returned by the bank unpaid for the reason of insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the bank for that account, the drawer of such cheque shall be deemed to have committed an offence. In that case, the drawer, without prejudice to the other provisions of the said Act, shall be punishable 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 provisions have also -been made so that to constitute the said offence-- (a) Such a cheque should have been presented the bank within a period of six months of the date of its drawal or within the period of its validity, whichever is earlier. (b) The payee or holder in due course of such cheque should have made a demand for the payment of, the said amount by giving notice in writing to the drawer of the cheque within fifteen days of the receipt of information by him from the bank regarding return of the cheque unpaid. (c) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actment is presumed not to be intended to have retrospective operation. The essential idea of legal system is that current law should govern current activities. An act or omission is not criminal unless forbidden by law. If it is done today, the law applying to it should be the law in force today. Article 20(1) of the Constitution provides as follows ; 20(1). No person shall be convicted of any offence except for violation of a 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. 14. Article 7 of the European Convention of Human Rights states that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Where the act or omission did constitute an offence when committed, no penalty is to be imposed which is heavier than the one applicable at that time. Willes J. in Phillips v. Eyre [1870] LR 6 QB 1, observed as follows : . . . . contrary to the general princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trospective ; but every retrospective law is not an ex post facto law : The former, only, are prohibited. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust and may be oppressive ; and it is a good general rule that a law should have no retrospect ; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement ; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. But I do not consider any law ex post facto within the prohibition that mollifies the rigour of the criminal law ; but only those that create or aggravate the crime or increase the punishment or change the rules of evidence for the purpose of conviction. Every law that is to have an operation before the making thereof, or to commence at an antecedent time, as to save time from the Statute of Limitations, or to excuse acts which were unlawful and before committed, and the like, is retrospective. But, such laws may be proper or necessary, as the case may be. There is a great and appa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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