( 1 ) LEGALITY or the correctness of taking cognizance and issuing summons to the revision-petitioner on November 30, 1994 by the Munsiff and JMFC, Hadagali, District of Bellary in a criminal case instituted on a private complaint by second respondent for an offence under S. 138 of the Negotiable Instruments Act is challenged in this revision petition. The revision-petitioner is the accused, second respondent is the complainant and the first respondent is the State of Karnataka. Hereinafter I refer to the parties as they are described in the private complaint for the purpose of convenience. ( 2 ) FEW facts relevant for the disposal of this revision may be stated thus :- It appears the accused had taken hand loan of Rs. 30,000/- from the complainant for his contract work on October 4, 1993 promising him to repay on demand. When the complainant demanded for repayment of the amount, accused issued a cheque bearing No. 124453 dated January 18, 1994 in favour of the complainant for a sum of Rs. 30,000/drawn on Bellary District Central Cooperative Bank, Harapanahalli Branch. The complainant presented the cheque for encashment and on April 19, 1994, the cheque was bounced with an endorsement "refer to drawer". Then again the complainant presented the cheque on 15-7-1994 and it was bounced on the same day with an endorsement "refer to drawer". Therefore, the complainant sent a notice dated July 16, 1994 by registered post acknowledgement due requesting the accused to make payment within 15 days and that was served on the accused on July 19, 1994. The accused did not either reply or made payment within 15 days and therefore on September 2, 1994 complaint was filed in the Court for an offence under S. 138 of the Negotiable Instruments Act. The learned Magistrate took cognizance of the offence, recorded the sworn statement of the complainant, marked the documents Ex. P-1 to P-4 and by the impugned order dated November 30, 1994 issued summons to the accused for appearance by January 4, 1995. This order is under challenge. ( 3 ) LEARNED counsel for the revision-petitioner, second respondent and the learned High Court Government Pleader for the respondent-1 State present. ( 4 ) THE learned counsel for the accused contended that the sworn statement is recorded by the Court with the assistance of the advocate and therefore the proceedings vitiates. This order is under challenge. ( 3 ) LEARNED counsel for the revision-petitioner, second respondent and the learned High Court Government Pleader for the respondent-1 State present. ( 4 ) THE learned counsel for the accused contended that the sworn statement is recorded by the Court with the assistance of the advocate and therefore the proceedings vitiates. Secondly he contended that at the first instance on January 18, 1994 complainant presented the cheque for encashment through his banker and that was returned to him on January 21, 1994 on the ground that there is insufficiency of funds. Therefore, the complainant issued a notice dated January 29, 1994 asking the accused to make payment within 15 days, that he sent a reply notice dated March 5, 1994 contending inter alia that his cheque book was stolen and the cheque in question is forged and he is not liable to make any payment The complainant having kept quite, presented the cheque for second time in the month of July 1994 and that being returned, sent a notice dated July 16, 1994 and thereafter he made this complaint. Since the complainant did not make any complaint within one month after the expiry of the period of 15 days after the dishonour for the first time, the cause of action accrued stood vanished and therefore the complaint filed after the cheque was dishonoured for the second time is not maintainable in law. In support of his arguments, he invited my attention to the decisions of the Kerala High Court in K. Chellakkannu Nadar v. Sri Chenkal M. R. Simon reported in 1994 Cri LJ 3515 and the unreported decision of a learned single Judge of this Court in Criminal Revision Petition No. 146/95 (D. Puttaswamy v. N. Ramakrishna - 3-4-95 ). The learned counsel for the complainant argued that a cheque can be presented any number of times or within a period of six months within the date of its validity which ever is earlier in view of S. 138 (a) of the Negotiable Instruments Act and the complaint could be filed on the basis of the last dishonour. What is necessary is that a notice under S. 138 (b) of the Act should precede such complaint. He relied on the decision of the learned single Judge of the Andhra Pradesh High Court in Richard Samson Sherrat v. Sudhir Kumar Sanghi. What is necessary is that a notice under S. 138 (b) of the Act should precede such complaint. He relied on the decision of the learned single Judge of the Andhra Pradesh High Court in Richard Samson Sherrat v. Sudhir Kumar Sanghi. (1992 Cri LJ 2566) affirmed by the Division Bench of the same Court in M/s. Syed Rasool and Sons v. M/s. Aildas and Company reported in 1992 Cri LJ 4048. ( 5 ) IN view of the rival contentions, the only point that would arise for consideration is whether the complaint filed after the cheque being dishonoured for the second time is maintainable in law having not filed any complaint after notice under S. 138 (b) after the cheque was returned for the first time. Chapter XVII of the Negotiable Instruments Act consisting of Ss. 138 to 142 was reintroduced by S. 4 of the Banking Public Financial Institutions and Negotiable Instruments Laws. (Amendment) Act 1988 (Act No 66/1988) under a new nomenclature for the chapter "of penalties in case of dishonour of certain cheques for insufficiency of fund in the accounts By the amendment a new offence under S. 138 of the Act is created. Suffice it to say that issuance of post-dated cheque and its dishonour by itself would not constitute an offence under S. 138 of the Act Dishonour of a cheque would constitute an offence subject to certain events namely, (a) cheques should have been presented within a period of 6 months from the date on which it is drawn or within the period of its validity whichever is earlier; (b) the payee or holder-in-due course of the cheques as the case may be must make a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the bank regarding the return and lastly; (c) the drawee of such cheque fails to make payment of the said amount to the payee or as the case may be to the holder-in-due course of the cheque within 15 days of the receipt of the said notice. ( 6 ) SECTION 142 of the Act imposes certain restrictions in cognizance of an offence under Sec. 138 of the Act. ( 6 ) SECTION 142 of the Act imposes certain restrictions in cognizance of an offence under Sec. 138 of the Act. Section starts with a non obstante clause and contemplates that :- (a) no court shall take cognizance of any offence punishable under S. 138 except upon a complaint in writing made by the payee or as the case may be by the holder-in-due course of the cheque; (b) such complaint is made within one month from the date of which the cause of action arise under clause (b) of the Proviso to S. 138; and (c) no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate-I Class shall try any offence punishable under S. 138 of the Act. Issuing a cheque and its dishonour etc. , basically gives rise to a civil action and it matures in to an offence only on the happening of certain events enumerated in S. 138 (a) to (c ). But for S. 142 of the Negotiable Instruments Act, any Magistrate could have taken cognizance of an offence under S. 138 of the Act with in 3 years from the date of commission of offence either on a private complaint or on a police report or upon information received from any person in view of Ss 190, 468 (2) (c) and Item, 11 of the First Schedule - "classification of offences" of the Code of Criminal Procedure. Section 142, Cr. P. C. imposes certain restrictions, it empowers only a Metropolitan Magistrate or a Judicial Magistrate of the First Class to take cognizance of an offence under S. 138 of the Act on a complainant in writing by the drawee and if the complaint is made within 30 days from the 16th day after the receipt of notice under S. 138 (b) of the Act. ( 7 ) EXPRESSION "offence" is defined under sub-sec. (n) of S. 2 of the Cr. P. C. and according to the definition "offence" means any act of omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under S. 20 of the Cattle Trespass Act, 1871. (n) of S. 2 of the Cr. P. C. and according to the definition "offence" means any act of omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under S. 20 of the Cattle Trespass Act, 1871. Turning to the facts of the present case, act of issuing a cheque, its dishonour and omission to make payment of the amount despite notice under S. 138 (b) of the Act, matures into an offence on the sixteenth day after the service of notice and the offence would be continuing so long as the amount remains unpaid. Section 142 of the Act which does not constitute any ingredient of the offence imposes certain restrictions on taking cognizance of the offence. ( 8 ) SECTION 472 of the Cr. P. C. contemplates that in the case of continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues. The expression 'continuing offence' has come up for consideration before the Supreme Court time and again and the Supreme Court has consistently held that the expression 'continuing offence' has not been defined in the Code that the question whether a particular offence is an offence or not, must therefore necessarily depend upon the language of the Statute which creates that offence, the nature of the offence and the purpose intended to be achieved by constituting the particular offence. Raja Bahadur Singh v. Provident Fund Inspector reported in (1984) 4 SCC 222 : ( AIR 1984 SC 1688 ) and G. Patel Volkart Ltd. v. Dundayya G. Hiremath reported in (1991) 2 SCC 141 . An offence under S. 138 of the Negotiable Instruments Act is created by Central Act 65 of 1988. One of the objects in creating an offence under S. 138 is to curb the enormous increase in number of issuing cheques and its dishonour, perhaps in most of the cases on the ground of insufficiency of funds. Transactions basically civil in nature is made punishable under S. 138 of the Negotiable Instruments Act on the happening of certain events after once the cheque is issued and bounced. The mere issuance of cheque or its bouncing for insufficiency of funds does not constitute an offence under S. 138 of the Act. Transactions basically civil in nature is made punishable under S. 138 of the Negotiable Instruments Act on the happening of certain events after once the cheque is issued and bounced. The mere issuance of cheque or its bouncing for insufficiency of funds does not constitute an offence under S. 138 of the Act. An offence is constituted only after a notice of demand under S. 138 (b) is served on the drawee and on his failure to make payment within fifteen days. Once there is failure, offence continues till the amount remains unpaid. Section 142 only imposes certain restrictions in taking cognizance of the offence and nothing more. Therefore an offence under S. 138 of the Negotiable Instruments Act is in the nature of continuing offence and as such complaint based on second or subsequent dishonour of the cheque is certainly maintainable in law, notwithstanding the fact that the drawee does not avail the opportunity and files the complaint after its first dishonour and there after notice under S. 138 (b) of the Act being served on the drawer of the cheque. ( 9 ) IN interpreting S. 138 of the Negotiable Instruments Act, Courts have held that repeated presentation of the cheque for encashment is permitted within six months or within the date of its validity whichever is earlier. Therefore, every time the cheque is dishonoured within that period, drawee could issue notice to the drawer calling upon him to make payment with a threat of prosecution if he so desires and only when the drawer fails to make payment within fifteen days from the date of the receipt of that notice, it matures into an offence. Even in such circumstance, the drawee may not choose to prosecute the drawer for one reason or the other or it may be for the reason that the drawer approaches him requesting to wait and present it after some time. In such circumstances if the drawee obliges the drawer and presents the cheque after some time and if the cheque were to be bounced again for insufficiency of funds or for any reason that would again give rise to an action for the drawee to issue notice under S. 138 (b) calling upon the drawer to make payment and failure to make payment within fifteen days gives rise to a fresh cause of action. It is for the drawee to decide as to whether a prosecution for an offence under S. 138 of the Act be initiated or not. But, it would not be correct to say that the moment the cheque is dishonoured and a notice has been issued calling upon the payee to make payment and on his failure to make payment within fifteen days, cause of action would arise for initiating proceedings and if that opportunity is not availed, the complainant cannot initiate criminal proceedings on the basis of second or subsequent dishonour. What is required is that the cheque should have been presented within six months or within its validity as required under S. 138 (a) of the Act. Further, the complainant has to make out what a notice of demand was issued to the drawer within fifteen days from the date the cheque was last returned for want of sufficient funds and the drawer has failed to make payment within fifteen days from the date of receipt of that notice and the complaint should be within one month from that day. ( 10 ) THERE is no substance in the arguments that if a complaint is permitted on the subsequent refusal it may result in successive or repeated complaints and repeated prosecution and conviction. It is necessary to remember that there cannot be successive trial for the same offence and repeated convictions in view of Art. 20 (2) of the Constitution of India and S. 300 of the Code of Criminal Procedure. The learned counsel for the revision petitioner inviting my attention to the decision of the learned single Judge of the Kerala High Court in K. Chellakkannu Nadar v. Sri Chenkal TVI. R. Simon (1994 Cri LJ 3515) contended that a complaint on a second dishonour or subsequent dishonour is not maintainable. The learned Judge observes that right to present the cheque any number of times during the validity period is not the sole criteria to decide this question, once an offence is committed by the drawer of the cheque, subsequent offence cannot be fastened on him by using the same cheque. With great respect, I am not persuaded to agree with the said reasoning. Cause of action once arose does not die the moment the complainant chooses not to file a complaint on the first dishonour. With great respect, I am not persuaded to agree with the said reasoning. Cause of action once arose does not die the moment the complainant chooses not to file a complaint on the first dishonour. Right to file a complaint continues, but for the restriction imposed by S. 142 of the Act. Therefore, when a complaint is made, it should be shown that the presentation of the cheque is within the time permitted under S. 138 (a), of the Act, it is preceded by a notice under S. 138 (b) and the drawer has failed to make payment within 15 days after the receipt of that notice and nothing more. The learned single Judge of this High Court in an unreported case Crl. Revn. Petn. No. 146/95 while referring to the decision of the Division Bench of the Andhra Pradesh High Court observes that filing a complaint under S. 138 r/w S. 142 of the Act can be done only once. There cannot be any quarrel over this proposition. Law does not permit successive complaints in respect of one and the same cheque and repeated convictions for offence based on the same cheque in view of S. 300, Cr. P. C. and Art. 20 (2) of the Constitution of India. The Division Bench of the Andhra Pradesh High Court in Sved Rasool and Sons' case (1992 Cri LJ 4048) has held that a complaint on a second dishonour or subsequent dishonour is maintainable in law. ( 11 ) THE learned single Judge of the Andhra Pradesh High Court on March 12, 1992 in Richard Samson Sherrat v. Sudhir Kumar Sanghi reported in (1992) 2 Crimes 150 : (1992 Cri LJ 2566) has taken the view that a complaint on a second dishonour is maintainable disagreeing with the views expressed by the learned single Judge of the Kerala High Court in the case of Chellakkannu Nadar (1994 Cri LJ 3515 ). The decision of the learned single Judge has been approved by the Division Bench of the same High Court on September 30, 1992 in M/s. Syed Rasool and Sons v. M/s. Aildas and Co. reported in 1992 Cri LJ 4048. A similar situation came up for consideration in Syed Rasool's case and the Division Bench considering the object and purport of Ss. reported in 1992 Cri LJ 4048. A similar situation came up for consideration in Syed Rasool's case and the Division Bench considering the object and purport of Ss. 138 and 142 and the scheme of Chapter XVII of the N. I. Act observes thus :-"the complaint in whose favour a cheque has been issued has got a right to file a complaint only once on the said cheque. He can file a complaint within one month of the date of cause of action. Cause of action is a bundle of facts. The party can take into account the final cause of action as the one to base his claim within the period of limitation and the final cause of action arises on account of dishonour alone. Thus the complainant can file a complaint for offences under S. 138 read with S. 142 of the Act after the dishonouring of the cheque for the first time or he may choose to present the cheque at the request of the drawer within the said period of six months from the date of the cheque any number of times but the action to be taken by him by filing of complaint is only once and the period of limitation has to be counted from the date of last dishonour of the cheque. That means the imitation period cannot be taken into consideration from the first date of dishonour and the last date of dishonour alone has to be taken into consideration for the purpose of filing a complaint. So we affirm the judgment of the learned single Judge (Eswara Prasad, J.) in Richard Samson Sherrat v. State of Andhra Pradesh (1992 Cri LJ 2566) (Andh Pra) (supra) holding that the second presentation of the cheque within the period of six months is valid. However, it is clarified that the complaint that has to be laid on the said cheque is only once and that too duly taking into account the limitation as prescribed basing on the result that has come out from the subsequent presentation of the cheque. "further, it is held that the Court could entertain a complaint for an offence under S. 138 on the allegations in the complaint if it per se shows that there is compliance of the provisions of Ss. "further, it is held that the Court could entertain a complaint for an offence under S. 138 on the allegations in the complaint if it per se shows that there is compliance of the provisions of Ss. 138 and 142 of the Act, the Court has to look into the main features namely, the date of issuing of the cheque, the date of dishonouring of the cheque by the bank, the date of issuing a notice and the date of filing of the complaint in Court. If these facts have been borne out from the allegations in the complaint, the Court of competent jurisdiction is entitled to take cognizance of the same and the High Court is not entitled to entertain an application under S. 482 of the Cr. P. C. ( 12 ) IN the instant case the allegations made in the complaint satisfy these requirements and indicate that the presentation of the cheque is within the time permitted under S. 138 (a) of the Act, there is a notice under S. 138 (b) and that has been served on the drawer on July 19, 1994 and within 15 days thereafter, he has failed to make payment and the complaint is made within one month from that day. Therefore, the complaint made on a second dishonour is maintainable and the cognizance taken on that complaint is proper. ( 13 ) THE learned counsel further submitted that the learned Magistrate has taken the assistance of the advocate in recording the sworn statement of the complainant and therefore the whole proceedings are vitiated. I therefore find no merit in this argument. As I could see, the learned Magistrate has recorded the sworn statement in a prescribed form in which the blanks are normally filled up by the Bench Clerk/court Officer. But a close look at the statement clearly makes out that the Court has recorded the sworn statement of the complainant and has marked documents. Therefore there is no merit in contending that the learned Magistrate has taken assistance of the advocate in recording the sworn statement and the whole proceedings are therefore vitiated. ( 14 ) IN view of the foregoing reasons, I find no merit in either of the two contentions raised on behalf of the revision petitioner and therefore the petitioner fails. ( 15 ) IN the result, the revision is dismissed. Revision dismissed. --- *** --- .