(1) In the case of an offence under section 138 of the N.I Act, is there any distinction between a situation wherein a person after issuing a cheque to another, closes that account, and a situation wherein a person after closing the account with the bank, manages to issue a cheque to another from that account he had already closed?

(2) In the case of an offence under section 138 of the N.I Act, is there any distinction between a situation wherein a person after closing the account with the bank, manages to issue a cheque to another from that account he had already closed, and a situation wherein a person issues a cheque to another without the knowledge that the bank on its own volition had closed that account?

(3) What should be the extend of 'application of mind' by a Magistrate for invoking the power under section 156(3) Cr.P.C.?

2. The appellant is the complainant in C.C.No.255 of 2002 of the Judicial First Class Magistrate's Court, Chavakkad, who has come in appeal by challenging the judgment of acquittal passed by the Additional Sessions Court (Adhoc-I), Thrissur, in Crl.Appeal No.22 of 2006. The 1st respondent herein is the accused in C.C.No.255 of 2002 of the Judicial First Class Magistrate's Court, Chavakkad. The said case was as a result of a private complaint filed by the appellant herein as complainant, against the 1st respondent herein as accused, alleging an offence under Section 420 IPC.

3. The trial court took cognizance of the offence under Section 420 IPC, conducted the trial and finally convicted the accused under Section 420 IPC and sentenced him thereunder, through judgment dated 31.12.2005. The same was taken up in appeal by the accused through Crl.Appeal No.22 of 2006. The said Crl.Appeal was allowed of by the Additional Sessions Court (Adhoc-I), Thrissur, through judgment dated 07.06.2008, whereby acquitting the accused by finding that an offence under Section 420 IPC was not established and made out.

4. Heard the learned counsel for the appellant and the learned counsel for the 1st respondent.

5. The learned counsel for the appellant has pointed out that even though in the concluding portion of the complaint, the complainant had averred that the offence committed by the accused was one under Section 420 IPC, all the ingredients of an offence under Section 138 of the Negotiable Instruments Act were made out in detail in the complaint. According to the learned counsel for the appellant, on a perusal of the complaint and on conducting an inquiry, the trial court ought to have taken cognizance of the offence under Section 138 of the Negotiable Instruments Act instead of the offence under Section 420 IPC.

6. Per contra, the learned counsel for the 1st respondent/accused has argued that the complainant had knowingly invoked the provision under Section 420 IPC and had chosen to proceed against the accused for the offence under Section 420 IPC and therefore, presently he cannot be heard to say that he wanted to get the accused proceeded against for the offence under Section 138 of the Negotiable Instruments Act.

7. It seems that the complainant had pleaded all necessary averments and allegations to invite an offence under Section 138 of the Negotiable Instruments Act in the complaint. In the complaint he had averred that on 01.11.1997, the accused had borrowed an amount of Rs.1,50,000/- from him and thereafter, when he demanded the amount, the accused, in discharge of that liability, issued Exhibit-P1 cheque on 10.01.2001. The said cheque when presented, returned dishonoured, with the dictum 'account not with us'. On getting back the cheque as dishonoured on 23.01.2001, the complainant caused to issue a demand notice within the meaning of Section 138(b) of the Negotiable Instruments Act on 24.01.2001. The accused received the notice on 25.01.2001. As the payment was not forthcoming within 15 days of the receipt of the notice, the cause of action had arisen. The complaint was filed on 22.02.2001, i.e., within