JUDGMENT 1. - This petition under Section 482 Cr.RC. is directed against the order dated 1.8.2001 whereby the learned Additional Sessions Judge No. 2, Ajmer upheld the order of taking cognizance against the accused petitioner by dismissing the application of the accused petitioner on 5.1.2001. 2. The facts of the brief are that the respondent No. 2 - complainant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short the Act) with the averments that the accused petitioner got his Maruti Car repaired from the workshop of the complainant and issued two cheques in June and July, 1997 for a total sum of Rs. 1,11,000/-. Both the cheques were returned as dishonoured by the bank. Thereafter, the accused petitioner received back these two cheques and delivered a new cheque on 25.8.1997 for a total sum of Rs. 1,16,319/-. This cheque was also dishonoured when presented in the bank vide memo dated 4.9.1997. The complainant served a notice to make the payment but the accused petitioner failed to make the payment within prescribed period. 3. Learned Magistrate forwarded this complaint for investigation to concerned police station. The police, after investigation submitted final report. On protest petition, the Magistrate conducted an inquiry and took cognizance vide order dated 2.4.1998 under Section 138 of the Act. 4. Thereafter, the accused appeared before the Court and filed an application after about 15 months of cognizance order for recalling the cognizance order. This application was dismissed on 5.1.2001 Criminal Revision filed against this order was also dismissed vide impugned order dated 1.8.2001. 5. Learned counsel for the accused petitioner raised a number of arguments. His first contention was that the cognizance order dated 2.4.1998 goes to show in that the Magistrate took cognizance without application of mind, as it is the case of the complainant himself that two cheques given earlier were given back to the accused and the accused delivered a new cheque to the complainant but the cognizance order goes to show that cognizance was taken for dishonouring of earlier two cheques. Factually, this aspect is correct but subsequently an application was moved on behalf of the complainant that cognizance order regarding earlier cheques was by way of mistake and it can be cured as provided under Section 362 Cr.P.C. At this stage, this contention of learned counsel regarding non- application of mind while passing the cognizance order cannot be accepted as it was well within the knowledge of the accused petitioner himself that the dispute relates to the third cheque. It is also significant to say here that according to learned counsel for the respondent- complainant the trial has already proceeded and the complainant was examined and he was cross-examined in detail before the Trial Court. Next contention was that no notice regarding third cheque was given, hence the cognizance order as well as subsequent trial is bad in law. Reliance is placed upon Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and others, (2001) 6 SCC 463 , it was held in para 6 of this judgment that to constitute an offence under Section 138 of the Act, the complainant is obliged to prove its ingredients which include the receipt of the notice by the accused under clause (b). It is to be kept in mind that it is not the giving of the notice which makes the offence but it is the receipt of the notice by the drawer which gives the cause of action to the complainant within statutory period. Learned counsel for the complainant contended that one notice on behalf of the accused petitioner under signatures of his counsel dated 1.9.1997 was sent to the complainant and the complainant sent reply of this notice on 4.9.1997 through his advocate to the advocate of the accused petitioner and vide his reply, the complainant raised the demand of the third cheque which was dishonoured and thus it was not only the reply of the notice of the accused but notice also to the accused informing him that the third cheque has been dishonoured and he should make the payment of this cheque. In reply learned counsel for the accused argued that notice by advocate to the advocate of the accused does not amount to any notice. This argument cannot be accepted at this stage. In reply learned counsel for the accused argued that notice by advocate to the advocate of the accused does not amount to any notice. This argument cannot be accepted at this stage. In this case giving and receipt of notice is a question of law and fact and as stated already, the complainant has already been examined by the Trial Court, hence cognizance order as well as subsequent orders cannot be set aside on this ground also. It was also contended that wrong particulars of the cheque were given in the complaint but both the Courts below failed to consider this aspect. This contention has also not force and further it is a matter of trial and such dispute can be decided only after trial. 6. Consequently, this petition along with stay application is hereby dismissed.Petition dismissed. *******