ORDER : Smt. S.R. Waghmare, J.: - By this petition under Section 482 of the CrPC the accused applicant Krishna Gopal has challenged the or­der dated 28.10.2010 passed by the Judicial Magistrate, Class-I, Ratlam in Criminal Case No.2190 of 2007 dismissing the application for discharge filed by the accused. 2. Brief facts necessary for elucidation are that a complaint was filed the accused petitioner for offence under Section 138 of the Negotiable Instruments Act and pending before the Judi­cial Magistrate, Class-I Ratlam. The complaint had stated that the accused had issued cheque No. 1308956 dated 29.12.2004 for a sum of Rs.20,000 which was returned by the Oriental Bank Commerce, Branch Ratlam with the re­mark that insufficiency of funds and the signa­ture of the drawer did not match. Counsel for the petitioner has vehemently stressed the fact that when the cheque was dishonoured for two grounds that the funds were insufficient and the drawer's signature differed from the specimen signature; then in such circumstances as prayed by the applicant, he cannot be said to have com­mitted an offence under Section 138 of the Ne­gotiable Instruments Act and the learned Judge of the lower Court had erred in taking cogni­zance of the offence and issuing process. Coun­sel stated that by the impugned order itself the learned Judge was satisfied with the authority cited by this petitioner in the matter of Rajkumar Shukla v. Sobodh Agrahari, 2010 (1) NIJ 375 (MP): 2010(1) MPLJ 179 and Vinod Thanna and Anr. v. Zahar Siddiqui and Ors., 2003(1) MPLJ 373 where by this Court as well as the Apex Court had held that under the circumstances of the offence un­der Section 138 of the Act cannot be made out. 3. Counsel for the respondent, on the other hand, has relied catina of the cases. Counsel placed reliance on S. Devon, Cine Artist, No. IV. v. C. Krishna Menon "Sowpamkia" & Ors., 2010(2) OCR 1. Lily Hire Purchase Put. Ltd. v. Darshan Lal, II 1997 BC 239. K.M. Krishnan @ Ponnuvel v. R. Subbarayan, 2010(1) NIJ 188. Santosh Kumar & Anr. v. Smt. Siruaiya, 2005 (2) MPHT 343 . Yogendra Kumar v. Ram Prakash Agrawa, 2007 (2) NIJ 344. Dipendra G. Choksi Patel v. Dipak Chimnlal Patel, 2010(2) NIJ 69. Lily Hire Purchase Put. Ltd. v. Darshan Lal, II 1997 BC 239. K.M. Krishnan @ Ponnuvel v. R. Subbarayan, 2010(1) NIJ 188. Santosh Kumar & Anr. v. Smt. Siruaiya, 2005 (2) MPHT 343 . Yogendra Kumar v. Ram Prakash Agrawa, 2007 (2) NIJ 344. Dipendra G. Choksi Patel v. Dipak Chimnlal Patel, 2010(2) NIJ 69. Chhail Das v. State of Haryana, 1975 CrLJ 129 & Mu­nicipal Corporation of Delhi v. Rain Kishan Rohtagi & Ors., 1983 Cri LJ 159 to state that even if the signa­ture in the cheque is proved to be not genuine, the culpability under Section 138 of the Act has to be decided by the Court by deciding whether the signature is genuine and the execution is proved or not. Counsel urged that merely be­cause the banker had returned the cheque for the reason that the signature differs, was no rea­son for the Court to mechanically swallow that reason. Counsel vehemently urged that the Courts were obliged to be concerned whether the real reason for dishonour is insufficiency of fund or not. Counsel for the respondent has also relied on several cases to indicate that the pre­sumption under Section 139 of the Negotiable Instruments Act must follow and the drawer of the cheque can be held responsible under Sec­tion 138 of the Act. She also depended on the same case as in the matter of Rajkumar Shukla (supra) to state that under identical circum­stances the loss of cheque was alleged by the accused and the same fact was mentioned in the reply to the notice and he had reported a loss of cheque to the police station Adhartal; such is not the condition in the present case. Moreover, she also stated in the matter of Vinod Thanna v. Zahar Siddiqui and Ors., (supra) the matter pertain to incomplete signatures and could not compared with the present case where the banks has stated that signatures were differ­ent. She stated that it is a matter to be proved by handwriting expert and the case cannot be prematurely dismissed. She prayed that petition was without merit and had been filed at prema­ture stage and prayed for dismissal of the same. 4. She stated that it is a matter to be proved by handwriting expert and the case cannot be prematurely dismissed. She prayed that petition was without merit and had been filed at prema­ture stage and prayed for dismissal of the same. 4. On considering the above submissions I find that Counsel for the respondent has also relied on the matter of Rajkumar Shukla (su­pra) however as pointed out by the Counsel for the petitioner the precedent should not be quoted in part. The mischief rule of interpreta­tion would apply in the present case. The above mentioned case of Rajkumar Shukla (supra) clearly states in paras 8 and 9 thus: 8. It is not every return of cheque which is made punishable by the provisions of Sec­tion 138 of Negotiable Instruments Act. After the said cheque is returned, for the reason it is referred to drawer for some other reasons e.g., the signature does not tally then the drawer of the cheque can­not be said to have committed an offence under Section 138 of the Negotiable In­struments Act and this being the legal po­sition the Magistrate was not justified in issuing process for an offence punishable under Section 138 of the Negotiable In­struments Act. 9. The contents of the complaint were suffi­ciently clear to show that no offence is dis­closed and, therefore, the learned Magis­trate has wrongly exercised the jurisdic­tion vested in him by law while issuing the process and taking cognizance of offence against the petitioner/accused is abuse of process of law. 5. Under these circumstances, I find that the learned Judge of the lower Court being constrained by the fact that it had already issued process and could not recall the same had no other option but to continue with the case. How­ever, since the petitioner has come before this Court and invoked the inherent powers of this Court under Section 482 of the CrPC and prayed for discharge since the offence is not made out under Section 138 of the Act and con­sequently relying on Rajkumar Shukla (supra) I find that the petition needs to be allowed. 6. Moreover I also find that the complainant has placed reliance on bankers note informing the complainant regarding the signatures being different, the complainant cannot now turn around and state that the signatures of the peti­tioners tallied with the signatures on the disputed cheque. 6. Moreover I also find that the complainant has placed reliance on bankers note informing the complainant regarding the signatures being different, the complainant cannot now turn around and state that the signatures of the peti­tioners tallied with the signatures on the disputed cheque. The complainant cannot blow hot and cold in the same breathe and hence I find that the impugned order needs to be set aside. It is hereby set aside. Placing my reliance on Adalat Prasad v. Rupalal Zindal, 2006 (2) NIJ 596. I hereby allow the petition and the petitioner is hereby charged from the offence under Section 138 of the Ne­gotiable Instruments Act as mentioned in Crimi­nal Case No.2190 of 2007 before the Judicial Magistrate Class-1, Ratlam. Thus the petition is allowed in terms herein-above indicated. Miscellaneous petition allowed.