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.

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