Honble KHAN, J. – With the consent of the parties the case was heard at this stage.

(2). Briefly stated the facts of the present case are that the petitioner had delivered a cheque for Rs. 10,000/- to non-petitioner Damodar Prasad Gupta on 15.1.1994. The said cheque was presented by Damodar Prasad in the Bank of en- cashment but the same could not be got encashed for in-sufficiency of amount in the account of the petitioner. Damodar Prasad Gupta, non- petitioner thereafter again presented the cheque in the Bank for encashment on 30.3.1994 and 22.4.1994 but the same could not be encashed for the same reason. Thereafter he delivered statutory notice u/s. 138 of the negotiable Instruments Act on 29.4.1994 but since the petitioner made no payment to him of the amount of the Cheque, he filed a complaint on 31.5.1994 against the petitioner in the Court of the Learned Magistrate. After putting in appearance the complainant moved an application before the learned Magistrate requiring him to cancel the order of taking cognizance of the offence u/s. 138 Cr.P.C. against him and summoning him as accused. His conten- tion was that he had delivered a second cheque to Damodar Prasad Gupta on 20.1.94 which was got encashed by him and, therefore, the complainant had no cause of action against him. His another contention was that the cause of action to file a complaint against the petitioner arose and accrued to the non-petitioner when the cheque was dishonoured or not encashed on 15.1.1994 but since the non-peti- tioner did not file a complaint against the petitioner after the rejection of cheque on 15.1.1994, this complaint was not maintainable on the basis of subsequent refusals by the Bank made on 30.3.1994 and 22.4.1994 to encash the cheque. By his impugned order dated 23.9.1995 the learned Magistrate rejected petitioners said application. Hence this petition u/s. 482 Cr.P.C.

(3). The main contentions of the learned counsel for the petitioner are those as mentioned above and they are sought to be supported by two decisions of the Punjab & Haryana High Court report in 1992 (3) Crimes 594(1) and 1995 (1) CCR 521(2) wherein it seems to have been held that if a notice was not issued within 15 days of the intimation of the dishonour of the cheque for the first time and thereafter a complaint was not filed, no complaint would be competent on the basis of refusal of the cheque by the Bank on the second or subsequent times. The learned counsel for the petitioner has further referred to a Division Bench decision of this Court in the case of Niraj Kumar vs. State of Raj. (3), in support of his contention that the learned Magistrate must have decided the issue raised before him and should not have made his decision thereupon dependent upon further proceedings in the case. The contention of the learned counsel was that the issue relating to the effect of refusal by the Bank to dishonour the cheque for the second and third time as also the effect of making payment by the petitioner to the non-petitioner through cheque dated 20.1.94 should have been decided by the learned Magistrate at that stage of the proceedings.

The relevant part of Sec. 138 of the Act reads as under :–

``Dishonour of Cheque for insufficiency, etc. of funds in the account where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of

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