Following questions are raised for a decision in this revision:

(i) Whether a person could be tried over gain for the offence of cheating (Section 420 of the Indian Penal Code (for short, "the IPC") on the basis of a second dishonoured cheque when he has already been tried and convicted of the same offence on the basis of another cheque issued in the same transaction?

(ii) Whether he could be tried subsequently for the offence under Section 138 of the Negotiable Instruments Act (for short, "the Act")?

2. According to the petitioner, he purchased a bus and later as per an agreement executed by him and the respondent and also his wife on 18.1993, sold that vehicle to the wife of respondent for a total consideration of Rs.3,41,000/-. Rs.5,000/- was paid to the petitioner at the time of agreement. The loan of Rs.1,65,000/- was agreed to be discharged by the purchaser. For payment of balance sum of Rs.1,71,000/- respondent issued three cheques dated 9.1993 for Rs.71,000/-, 111.1993 for Rs.50,000/- (Exhibit P1) and 111.1993 for Rs.50,000/- (for convenience they are separately referred to as the first, second and third cheque), all drawn on the same bank making him believe that when the cheques were presented they would be honoured and believing that representation, petitioner gave possession of the bus to the respondent. Petitioner presented the cheques but the same were dishonoured since there was no sufficient funds in the account of respondent and payment was stopped. Petitioner issued notice to the respondent intimating dishonour and demanding payment of the amount. Though notice was served on the respondent, he did not pay the amount. Alleging as above, petitioner filed three private complaints in the court of learned Judicial First Class Magistrate, Mattannur for offences punishable under Section 420 IPC and Section 138 of the Act. Learned magistrate forwarded the complaints to the police for investigation under Section 156(3) of the Code of Criminal procedure (for short, "the Code") Police registered case (Crime No.64 of 1994 in this case) and after investigation submitted final reports stating that offence under Section 420 IPC is disclosed. Learned magistrate took cognizance of that offence, tried the respondent in C.C. No.276 of 1996 and convicted him of the offence under Section 420 IPC. Other cases (C.C. Nos.274 and 275 of 1996) were transferred to another court. This revision concerns C.C. No.275 of 1996 which is in respect of the second cheque. After trial learned magistrate acquitted the respondent observing that it is doubtful whether prosecution in respect of the second cheque under Section 420 IPC would stand since respondent was already tried and convicted of the same offence (in C.C. No.276 of 1996), and further holding that the offence of cheating has not been made out since only a civil liability is involved and that too, against the wife of respondent. That order of acquittal is under challenge in this revision.

3. Learned counsel for petitioner contended that the bar under Section 300(1) of the Code is not applicable since the offence referred to in this case was committed by the respondent along with the offence for which he was tried in C.C. No.276 of 1996 within a period of one year. It is also contended that finding of learned magistrate that only a civil liability is involved cannot be sustained. Further contention is that at any rate, learned magistrate ought to have framed charge against the respondent under Section 138 of the Act. According to the learned counsel for respondent, the order of acquittal is justified and no interference is warranted on this fact situation.

2. 4. Beforegoing into the contentions raised by counsel on either side based on Section 300 of the Code, it is necessary to refer to the evidence adduced by the petitioner. He gave evidence as P.W.4. Exhibit P1 is photocopy of cheque dated 111.1993 for Rs.50,000/-allegedly drawn by the respondent in favour of petitioner on