1. - This criminal miscellaneous petition under Section 482 Cr.P.C. is directed against the Order dated 29.9.2004 passed by the Additional Chief Judicial Magistrate No. 3, Udaipur (for short, the trial Court" hereinafter) in Complaint Case No. 1313/2003, whereby the trial court dismissed the application dated 26.5.2004 filed by the accused-petitioner under Sections 203/204 of the Code of Criminal Procedure, 1973 (for short the Code").

2. I have heard learned counsel for the parties and perused the order impugned.

3. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act") was filed by the respondent before the trial court against the accused-petitioner, inter alia, alleging therein that a cheque was issued by the accused-petitioner in favour of the respondent, which, on being presented before the bank, was returned unpaid on account of closure of the bank account by the accused-petitioner. A notice under Section 138 of the Act demanding the amount was served on the petitioner. The petitioner, despite service of the notice, failed to make payment within the stipulated period of the notice and, therefore, the respondent filed the complaint under Section 138 of the Act. The trial Court took cognizance of the offence and issued process. In compliance of the process issued by the trial court, the accused-petitioner appeared on 3.11.2003. The matter was adjourned on various dates but the petitioner failed to appear; however, his counsel appeared before the trial court. On 26.5.2004, the counsel for the petitioner filed an application under Sections 203/204 of the Code and sought dropping of the proceeding and discharging the petitioner from the offence under Section 138 of the Act. By an elaborate order impugned, the application filed on behalf of the petitioner came to be dismissed. Aggrieved by the order impugned, the petitioner has filed the instant criminal miscellaneous petition.

4. It is contended by the learned counsel for the petitioner that by the communication dated 15.4.2003, the petitioner informed the respondent that due to business reasons, he had closed his bank account and, therefore, the cheque issued by him may not be presented in the bank and also requested the respondent to take a fresh cheque. It was further alleged that the cheque issued by the petitioner was undated. However, on perusal of the record, the trial court found that the cheque in question was not undated but it was the petitioner who put the date and signed, as also the closure of bank account by the petitioner was much after issuance of the said cheque. The said communication was received by the respondent on 17.4.2003. The cheque No. 774638 issued by the petitioner was returned unpaid and an intimation to this effect was received by the respondent on 5.5.2003. A registered notice was served on the accused-petitioner demanding the payment of amount within 15 days from the date of receipt of the intimation regarding dishonour of the cheque. According to the learned counsel for the petitioner, since the petitioner had informed the respondent regarding closure of bank account, therefore, no cause of action arose against the petitioner to file the complaint under Section 138 of the Act. It has further been contended that the notice demanding the amount was not only for the payment of cheque amount but an additional amount as interest was also demanded and, therefore, the notice demanding payment is illegal and on this count also, according to the learned counsel for the accused-petitioner, no cause of action arises in favour of the respondent to file the complaint.

5. There are numerous of cases filed by the respondent against the petitioner under Section 138 of the Act before the same Court for dishonour of cheques. In other cases, similar applications filed under Sections 203/204 of the Code came to be dismissed by the trial court, against which the petitioner preferred S.B. Criminal Revision Petitions No. 299