JUDGMENT (ORAL) G.D. Kamat, J. - Petitioner was complainant in Criminal Case No. 2/N/1990ID filed against the respondent. It was the case of the complainant that as the respondent owed to him an amount of Rs. 3,43,3191-, the respondent issued a cheque for Rs. 3,00,000/- dated 12-12-1989 drawn on Bank of India, Margo Branch, in favour of the complainant. When the cheque was presented to the Bank, the same was returned to the complainant with an endorsement "Payment stopped by the drawer". In the view of the return of the cheque, according to the complainant, the petitioner committed an offence under Section 138 of the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988. 2. In support of the complaint, complainant was examined and he produced on record the dishonoured cheque. On 1st of March, 1990, the Judicial Magistrate recorded an Order that no offence under section 138 of the Negotiable Instruments Act has been disclosed, but however, on the contrary the offence disclosed is under Section 420 of the Indian Penal Code for the purpose of issuance of process. He accordingly directed the issuance of process under the latter Section. When the process was issued the respondent appeared before the Court and Sought dismissal of the complaint and what is relevant to be seen is that, according to the respondent, no case for attracting the offence under Section 138 of the Negotiable Instruments Act had been made out. I may however, at this stage record that even before the issue of process directed by Order dated 1st of March, 1990, the complainant had moved an application for additional charge under Section 420 of the Indian Penal Code. 3. The matter lingered on for some time and in between there was a change of the Magistrate. The application for dismissal of the complaint at - the behest of the respondent was taken up by the successor Magistrate and by the impugned Order dated 11th of February, 1992, the learned Magistrate discharged the accused of the offence punishable under Section 420 of the Indian Penal Code and set the respondent at liberty. 4. The grievance of Mr. The application for dismissal of the complaint at - the behest of the respondent was taken up by the successor Magistrate and by the impugned Order dated 11th of February, 1992, the learned Magistrate discharged the accused of the offence punishable under Section 420 of the Indian Penal Code and set the respondent at liberty. 4. The grievance of Mr. Kantak, learned counsel appearing for the complainant, is that under no circumstances the respondent could have been discharged by the Magistrate once he appeared before the Court pursuant to the process issued against the respondent under Section 420 of the Indian Penal Code. According to him, it was mandatory after having issued the process for the magistrate to have embarked upon taking evidence of behalf of the prosecution and in that process it is further urged by Shri Kantak that it was even open to Magistrate to have imported Section 138 of the Negotiable Instruments Act if,' the situation had so warranted. In any case, according to him, viewing the matter in any case, either as a summons case or as a warrants case, there is a clear breach in recording an Order of discharge inasmuch as the evidence of the prosecution at no point of time was recorded which was in any case required to be recorded once the process had been issued. 5. This Revision Application is vehemently opposed by Shri Talaulikar, learned counsel for the respondent. In the first place, Mr. Talaulikar says that it is open to a Magistrate in a summons case to discharge the accused at any stage of the proceedings and in support of this proposition he relies upon the decision of K.M. Mathew v. State of Kerala Anr.1. In the second place, according to him, even if it is held that the case was proceeding as a warrant trial, the provision of Subsection (2) of Section 245 which is corresponding to the provision of Section 253 (2) of the old Criminal Procedure Code amply empowers the Magistrate to discharge the accused at any stage and in support of this proposition he relies upon the decision of Cricket Association of Bengal and others v. The State of West Bengal and others2. He next says that the respondent is the uncle of the petitioner/complainant and the cheque was given to the complainant under duress and otherwise there was nothing payable by the respondent to the complainant and the proceedings are only in the nature of harassing the respondent. What is more, according to Shri Talaulikar, the petitioner has already instituted a suit for recovery of consideration mentioned in the cheque in dispute and, therefore, viewed in any angle, the discretion exercised by the Magistrate regarding discharge is not warranted to be interfered with in the present proceedings by this Court. 6. Mr. Talaulikar then points out that the petitioner/complainant is trying to re-open the case insofar as Section 138 of the Negotiable Instruments Act is concerned. He says that, as a matter of fact, the Magistrate having refused to issue process under the-complaint by recording an Order on 1st of March, 1990 and having directed issue of process under Section 420 of the Indian Penal Code, it is not permissible to re-open that part of the case which is settled by the Order dated 1st of March, 1990. When this be the case, he has forcefully argued the only offence that remains to be answered by the respondent is that of Section 420 of the Indian Penal Code for which the procedure must undoubtedly be governed under Chapter XIX of the Code of Criminal Procedure and relying upon Sub-section (2) of Section 245, according to him, the matter of the complaint has culminated because the Magistrate has recorded Order of discharge for lack of material for importing offence under Section 420 of the Indian Penal Code. 7. It is common - ground that at no stage evidence has been recorded for end on behalf of the prosecution after the issue of process. It is equally common ground that based upon the statement of the complainant recorded by the former Magistrate he directed issue of process under Section 420 of the Indian Penal Code. Pursuant to that process the respondent appeared but at no stage any evidence in support of the prosecution was recorded. 8. There is no dispute that in a case involving offence under Section 138 of the Negotiable Instruments Act, the procedure attracted is as laid down in Chapter XX of the Criminal Procedure Code, namely adopting summons procedure. Pursuant to that process the respondent appeared but at no stage any evidence in support of the prosecution was recorded. 8. There is no dispute that in a case involving offence under Section 138 of the Negotiable Instruments Act, the procedure attracted is as laid down in Chapter XX of the Criminal Procedure Code, namely adopting summons procedure. Equally, there cannot be any dispute that if an offence under Section 420 of the Indian Penal Code is attracted the procedure to be adopted is as contained in Chapter XIX for warrant procedure. Section 245 states that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. Sub-section (2) thereof says that nothing in this Section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by Such Magistrate, he considers the charge to be groundless'~. Section 245(1) directly refers to Section 244 which in clear terms states that in any warrant case instituted otherwise than on a police report when the accused appears or is brought before a Magistrate, the magistrate shall proceed to hear the prosecution and take all Such evidence as may be produced in support of the prosecution. Sub-section (2) also empowers the Magistrate to issue summons to any of the witnesses either for tendering evidence or production of any document or thing. 9. In my view the case of the respondent does not take him very far insofar as the decision in Cricket Association of Bengal and others v. The State of West Bengal and others (supra) is concerned. The question there was whether after a particular Order was passed by the High Court holding that there is no case involved for adopting warrant procedure and directing the Magistrate to try the offence under the procedure available for summons cases, it was open to the Magistrate to have discharged the accuses!. The facts in the case were that after the proceedings were remanded by the High Court there was an application for discharged of certain accused followed by another one of discharge of the rest. The facts in the case were that after the proceedings were remanded by the High Court there was an application for discharged of certain accused followed by another one of discharge of the rest. This authority, therefore, does not in reality make any impact on the facts of the present case. Undoubtedly, reference is made to Sub-section (2) of Section 253 of the old Criminal Procedure "Code which is now corresponding to Section 245 (2) of the Criminal Procedure Code, 1973. But then the Section itself is clear that discharge is possible at any state and that can be also after the prosecution evidence has been recorded. 10. It may also be possible to accept Mr. Talaulikar's argument that it is possible to discharge an accused even when prosecution evidence is yet to be recorded if the Magistrate considers prima facie that there is no case. I think the argument is slightly misconceived. The question in what is the material before the Magistrate to be considered at this stage. Mr. Talaulikar indeed cannot dispute that Such a material can consist of (1) the complaint and (2) the statement of the complainant, if any, recorded before the issue of process, for, obviously, the material put forth by the accused cannot be considered. I would, therefore, go to the extent of saying that if the material in the complaint itself does not disclose any offence it is possible to record, as contended by Shri Talaulikar learned counsel for the respondent, a discharge even before the evidence on behalf of the prosecution is recorded. This is exactly where the present dispute falls. I have gone through the complaint. In simple and pure terms it records that the respondent owed an amount of over Rs. 3,00,000/- to the complainant. The complainant says that he was given a cheque for Rs. 3,00,000/- dated 12th of December, 1989 and when he presented the same to the Bankers it was returned not paid with an endorsement "Payment stopped by the drawer". The complaint thereafter mentions as to how the complainant has complied with the predicates mentioned of Section 138 of the Negotiable Instruments Act. The fact of issuing the cheque and the factum of the Bank endorsement is not denied. On these facts, I do not think that the Magistrate was right in discharging the respondent. The complaint thereafter mentions as to how the complainant has complied with the predicates mentioned of Section 138 of the Negotiable Instruments Act. The fact of issuing the cheque and the factum of the Bank endorsement is not denied. On these facts, I do not think that the Magistrate was right in discharging the respondent. The formal Magistrate took the view that offence under Section 420 of the Indian Penal Code had been disclosed and accordingly, process has been issued. Even if we take the averments made in the complaint, at its face value I do not think that the Magistrate was justified in making an Order of discharge. In fact between the date of the issue of process and the Order of discharge there was no new material before the Magistrate to take any other view. 11. Mr. Kantak, learned counsel appearing for the complainant, says that despite the Order of 1st of March, 1990 by the former magistrate that no offence is disclosed under Section 138 of the negotiable Instruments Act, according to him, if upon taking evidence the Magistrate is satisfied that ingredients of under Section 138 of Negotiable Instruments Act are disclosed it is open to the Magistrate to frame charge if warranted. This position, however, has been seriously disputed by Shri Talaulikar; According to him, in any event, the story of the prosecution insofar as Section 138 of the Negotiable Instruments Act is concerned is over once it has cultivated in the Order of 1st of March, 1990. Secondly, Mr. Talaulikar says that the endorsement of the Bank stopping payment at the instance of the drawer is not an ingredient contained under the offence falling under Section 138 of the Negotiable Instruments Act. In support of this contention of his and as to what is the actual scope of Section 138 he relied upon the decision of Abdul Samed v. Satya Narayan Mahawar3, a judgment of the learned Single Judge of the Punjab and Haryana High Court. I think I need not go into this controversy at all as the whole proceedings are only at the stage of issue of process and no prosecution evidence has been examined thus far. 12. Accordingly the Revision succeeds. The impugned Order dated 11th February, 1992 is quashed and set aside. The Criminal Case No. 2/N/1990/D to proceed from where it stopped. 12. Accordingly the Revision succeeds. The impugned Order dated 11th February, 1992 is quashed and set aside. The Criminal Case No. 2/N/1990/D to proceed from where it stopped. The Magistrate to record the prosecution evidence and proceed with the case in accordance with law. This judgment by no way be construed on merits of the complaint one way or the other. Rule accordingly made absolute. Revision allowed. 1. 1991 Crimes 820. 2. A.I.R. 1971 S.C. 1925. 3. II(1990) B.C. 305.