JUDGMENT

B. P. DAS, J. — This application under Sec. 482, Cr.P.C. is directed against an order dated 30.6.2000 passed by the learned J.M.F.C. (R), Cuttack in I.C.C. No. 24 of 1999 with a prayer to recall the order of taking cognizance in the said complaint case.

2. The fact giving rise to this revision application as narrated tends to reveal that the opposite party instituted a complaint case which was registered as I.C.C. No. 10 of 1998 against the present petitioners for the offence under Sec. 138 of the Negotiable Instruments Act and in the said case cognizance of the aforesaid offence was taken by the order of the learned Magistrate dated 20.2.1998. But the same wad dismissed on 17.4.1999 under Sec. 204 (4), Cr.P.C. as the complainant was absent and failed to file fresh requisites. Thereafter another complaint was filed on 7.5.1999 on the self-same allegation and basing upon the same dishonoured cheque, which was registered as I.C.C. No. 24 of 1999 and cognizance was taken under Sec. 138 of the Negotiable Instruments Act. As it appears from the narration made in the complaint petition that the present petitioners issued a cheque on 6.9.1997 for an amount of Rs. 77,755.26 paise which was presented by the opposite party through his Banker for collection but the same was returned to the complainant vide memo dated 15.9.1997 and received by the complainant on 13.11.1997. Thereafter notices were issued by the complainant to the peti¬tioners on 27.11.1997 which were received by them on 18.12.1997. Since the amount was not paid, a complaint case was filed which was within the time specified and within the period of limitation so prescribed by the statute. The same was registered as I.C.C.No. 10 of 1998. According to the learned counsel for the petitioners after the dismissal of the first complaint, a second complaint on the self-same ground, self-same allegation and self-same cause of action is not maintainable. According to him the cognizance so taken by the Magistrate for the offences under Sec. 138 of the Negotiable Instruments Act is illegal the reason being that the second complaint has been filed beyond the period of limitation and in contravention of the statutory provision incor¬porated under Secs. 138 and 142 of the Negotiable Instruments Act.

3. According to Mr. Mishra, the learned counsel for oppo¬site party, the initial complaint so filed was not adjudicated on merit and it was dismissed on technical grounds like not taking steps for filing the requisites and without moving the higher Court against the said order and without filing an application before the said Court for restoration of the complaint, a second complaint was filed which is maintainable. According to him, the limitation is not applicable as because the present complaint petition was dismissed without any adjudication and there is no bar under the Cr.P.C. for filing a second complaint. To fortify his argument, learned counsel for the petitioner pressed into service a decision of the Apex Court in the case of Jatinder Singh and others v. Ranjit Kaur, reported in * (2001) 20 OCR (SC) 374 wherein the apex Court held that when a Magistrate conducts an enquiry under Sec. 202, Cr.P.C. and dismisses the complaint on merit, a second complaint on the same facts can only be made under very exceptional circumstances.

The case so cited above is that a proceeding is under Secs. 494 and 109 of the Indian Penal Code in which an enquiry was conducted under Sec. 202, Cr.P.C. and the same was dismissed as the complainant was not present inside the Court when the case was called and a second complaint was filed in which the cogni¬zance was taken. Considering the facts and circumstances of this case, the Apex Court held that there is no provision in the Code or any other statute which debars a complainant from preferring a second complaint on the same allegations if the first did not result in conviction, acquittal on discharge and ultimately came to a conclusion that a se