( 1 ) FEELING aggrieved with an order dt. 24. 11. 06 passed by Special Judicial magistrate, Gwalior in Criminal Case No. 978/05, this petition under section 482 of Cr. P. C. has been filed for setting aside this order. Vide the impugned order, the learned Magistrate has dismissed an application under section 245 (2) of Cr. P. C. filed on behalf of the accused, who is the petitioner in this petition.

( 2 ) THE facts in brief, are that, respondent filed one complaint against the petitioner for the offence punishable under section 138 of negotiable Instruments Act (hereinafter referred to as the Act) on the allegation that Cheque no. 061028 issued by the petitioner, was dishonoured by the bank and returned without encashment with a memorandum dt. 9th July, 2005. Thereafter, despite issuance of notice when the amount was not paid by the petitioner, complaint was filed.

( 3 ) DURING trial, the aforementioned application was filed for discharging the petitioner on the ground that the memorandum of bank is - 'present again' and on this note of the bank, the offence under section 138 of the Act, is not made out. This application has been dismissed by the learned Magistrate