G. RADHAKRISHNA RAO, J.

( 1 ) THE Criminal Revision Case is filed by the petitioner-de facto-complainant challenging the judgment of the II Metropolitan Magistrate, Visakhapatnam, dt. 3/05/1991, passed in C. C. No. 353 of 1990, on his file, acquitting respondent No. 1 herein (accused) of the offence under section 138 of the Negotiable Instruments Act.

( 2 ) THE gravamen of the charge against the accused is that the accused gave two cheques dt. 25-6-1989 and 20-7-1989 for Rs. 3,600. 00 and Rs. 9,500. 00 respectively, drawn on Vysya Bank Limited Visakhapatnam, in favour of the petitioner herein in connection with the credit transactions between them, that the petitioner presented both the cheques in Karnataka Bank on 19-7-1989 and 20-7-1989 respectively and the Manager of Karnataka Bank, in turn, sent the cheques to Vysya Bank Limited for collection, that the Vysya Bank Limited returned those two cheques to the Karnataka Bank on 20-7-1989 and 21-7-1989 respectively with an endorsement "exceeds arrangements as there is no cash balance in the account of the accused", that the petitioner thereupon gave a statutory notice to the accused, who, having received it on 4-8-1989, did not pay the amounts covered by the two cheques even after lapse of 15 days and that therefore he filed a private complaint in the lower Court for an offence under section 138 of the Negotiable Instruments Act, which was forwarded by the Magistrate to the police for investigation under section 156 (3) of the Code of Criminal Procedure. After completing investigation into the case, the police filed the charge sheet. Thereafter, the learned Magistrate took the case of file, under S. 138 of the Negotiable Instruments Act, examined the accused under section 251, Cr. P. C. and thereafter examined P. Ws. 1 to 4 and marked Exs. P-1 to P-11. Ultimately, after trial, the learned Magistrate acquitted the accused of the offence under section 138 of the Negotiable Instruments Act. Aggrieved thereby, the present revision is filed by the de facto complainant (P. W. 1 ).

( 3 ) THE main contention advanced by the learned counsel for the petitioner, Mr. T. Bali Reddi, is that under section 142 of the Negotiable Instruments Act cognizance should have been taken on the private complaint filed by the petitioner itself but the private complaint filed by the petitioner should not have been forwarded to the police under section 156 (3) of the Code of Criminal Procedure for investigation and that the procedure adopted by the trial Court is illegal.

( 4 ) UNDER Section 142 of the Negotiable Instruments Act, 1881, no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. That means, Section 142 (1) contemplates of filing of a private complaint only. This section does not give any indication to refer such a private complaint filed by the payee or the holder in due course to the police for investigation under section 156 (3) of the Code of Criminal Procedure by the Magistrate before whom such a complaint is filed. In the case on hand the complaint filed by the petitioner was forwarded by the Magistrate to the police for investigation under section 156 (3) of the Code of Criminal Procedure and after conducting investigation the police filed the charge sheet and cognizance was taken by the Magistrate on the charge sheet filed by the police. It is a glaring defect in the procedure adopted by the Magistrate. In identical circumstances, in Y. Venkateshwara Rao v. Mahee Handlooms (P) Ltd. (1) 1992 (3) ALT 73, this Court held as follows :"as evidenced by Section 142 (a) of the Negotiable Instruments Act no Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in the course of the cheque. In the present case, the case was taken cognizance on a police compla

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