The court emphasized the principles of law enunciated by the Supreme Court, the requirements of Section 138 of the N. I. Act, and the validity of the complaint filed within the time limit.

( 1 ) THE brief facts leading to this case are: the respondent filed a private complaint before the IX Addl. C. M. M. Bangalore, alleging that the petitioner herein issued a post dated cheque dt. 4-8-1995 which came to be dishonoured on the ground that the drawer of the cheque had closed the account and that the petitioner being the drawer of the cheque has committed an offence punishable under Section 138 of the Negotiable Instruments Act and this complaint came to be filed after issuing statutory notice as contemplated under the Act.

( 2 ) THE learned Magistrate after taking cognizance of the offence directed to issue process to the petitioner. The petitioner filed an application before the same Court to recall that order of taking cognizance of the offence. The learned Magistrate considering the arguments of both sides passed a detailed order rejecting the application of the petitioner. Hence the petitioner questioned that order before the learned Sessions Court and the 23rd Addl. City Civil and Sessions Judge rejected the Rev. P. in Cr. R. P. 183/1996 dt. 13-12-1996 and confirmed the order passed by the learned Magistrate. As against that order the petitioner approached this Court under S. 482, Cr. P. C.

( 3 ) HEARD the learned counsel for the petitioner who has raised 4 points in this case. They are: (1) The learned Magistrate failed to follow the principles of law enunciated by their Lordships of the Supreme Court in K. M. Mathews case. Thereby the Magistrate flouted the law laid down by the Supreme Court. (2) The endorsement of the bank was that the account was closed. Therefore, no offence was made out. (3) Even otherwise the notice was given to the respondent informing him that the account was closed and hence the complainant could not have represented the cheque to gain the second cause of action to file a complaint. On that ground, it is urged that the complaint was not in time. (4) He also further submitted that there is a conflict of decisions on this question rendered by this High Court. Therefore, the case may be referred to a larger Bench for a decision.

( 4 ) REPELLING this argument, the learned counsel for the respondent submitted that the Court below has considered the application of the petitioner on its merit and there is no flouting of the law laid down by the Supreme Court. She further contended that the complainant had represented the cheque at the request and due to the assurance of the petitioner, that he had made arrangements for due payment of the amount payable under the cheque. Further there is no conflict of decisions rendered by this Court and question of referring the matter to the Larger Bench does not arise.

( 5 ) TAKING the first point into consideration it is abundantly clear that the learned Magistrate has followed the Supreme Court judgment reported in 1992 Cr LJ 3779 : (AIR 1992 SC 2206), K. M. Mathew v. State of Kerala, wherein it is held that it is open to the accused to plead before the Magistrate that the process against him ought not to have been issued. The Magistrate may drop the proceedings if he is satisfied on reconsideration of the complaint, that there is no offence for which the accused could be tried. It is his judicial discretion. No specific provision is required for the Magistrate to drop the proceedings or rescind the process. The order issuing process is an interim order and not a judgment. It can be varied or recalled. The fact that the process has already been issued is no bar to drop the proceedings, if the complaint on the very face of it does not disclose any offence against the accused.

( 6 ) FROM this judgment it is clear that the Magistrate is empowered to reconsider the order passed by him regarding taking cognizance and directing to issue process to the accused. If he is satisfied that there is no case made out nothing prevents him from recalling that order. In this case, from the impugned order, it is abundantly clear that the learned Court has considered th

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