JUDGMENT B. Siva Sankara Rao, J. 1. The complainant, who filed C.C. No. 119 of 2000 on the file of the Additional Judicial First Class Magistrate (Special Mobile), Nizamabad (Originally numbered as C.C. No. 5.11 of 1998 and on transfer to the Spl. Mobile court re-numbered as C.C. No. 119 of 2000); based on Ex. P. 2-cheque issued by the accused dated 07.12.1997 for Rs. 2,50,000/- which debt is covered by earlier Ex. A. 1-promissory note borrowing of said amount, dated 06.06.1997 and from the legal notice after dishonour of the cheque when presented covered by Ex. P. 4, bank cheque return memo, dated 03.04.1998 by Ex. P-3 notice dated 13.04.1998, that notice for not claimed returned covered by Ex. P. 5. It is in fact averred in the complaint that prior to the presentation of the cheque on 03.04.1998 earlier Ex. P. 2-cheque was presented on 08.12.1997 and the same was also returned dishonoured for insufficiency of funds and that the complainant issued legal notice dated 12.12.1997, which is not marked before the trial Court. It is based on that cause of action from subsequent presentation of the cheque dishonoured and notice given unclaimed, the complainant filed the private complaint case for the offences under Section 420 IPC and 138 of N.I. Act, the same was taken cognizance only under Section 420 IPC on 10.07.1998 saying the earlier presentation of the cheque on 08.12.1997 and issue of legal notice for the dishonour of the cheque on 12.12.1997 accrued cause of action once started will not further accrue by suspending existing cause of action to maintain the complaint under Section 138 of N.I. Act. It was there from for the offence under Section 420 IPC on a complaint case taken cognizance by the trial Court against the accused-charge framed under Section 420 IPC as provided for private warrant case and on accused when questioned denied commission of the offence and claims to be tried. 2. During the course of trial, on behalf of the complainant P.Ws. 1 to 5 were examined and Exs. P. 1 to P. 6 supra marked and accused came to witness box with permission under Section 315 Cr.P.C. as D.W. 1 and cause examined D.Ws. 2 to 4 and placed reliance upon Exs. 2. During the course of trial, on behalf of the complainant P.Ws. 1 to 5 were examined and Exs. P. 1 to P. 6 supra marked and accused came to witness box with permission under Section 315 Cr.P.C. as D.W. 1 and cause examined D.Ws. 2 to 4 and placed reliance upon Exs. D. 1 to D. 7 which include another C.C. No. 135 of 1998 based on loan agreement and three promissory notes laid in disputing the issuing of cheque and execution of promissory note for the so called debt. The trial Court referring to the expression of full bench of this Court in Opts Marketing (P.) Ltd. v. State of Andhra Pradesh, convicted the accused having found him guilty for the offence under Section 420 IPC and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs. 5,000/- with default-sentence of simple imprisonment for six months. Against which, the accused preferred Appeal No. 3 of 2003 and the 1st appellate Court mainly at para. 10 in pages 10 and 11, observed that admittedly the cheque consideration is depending upon earlier promissory note-Ex. P. 1 debt and either in the complaint or in the evidence says nothing on dishonest intention of cheating for the borrowal covered by promissory note debt to say for which cheque issued and for no consideration under the cheque separately paid nothing parted with or acted or omitted to do any act to a tribute said cheating there from by any intention to deceive and thereby offence not made out for no fraudulent or dishonest intention at the time of making promise from the inception for the debt. It is impugning the same, the second appeal is filed with leave granted under Section 378(4) Cr.P.C. The contentions in the grounds of appeal are the 1st appellate Court went wrong in reversing the finding of guilty of the accused for having been convicted for the offence under Section 420 IPC by re-appreciation of evidence in a wrong perspective instead of looking into the factum of the accused issued the cheque without intention to honour that is further supported by subsequent events like issuing notice to the bank alleging cheque lost and not to honour any presentation of cheque for encashment, unclaimed the legal notice etc., hence to set aside the said finding of the 1st appellate Court by confirming the conviction judgment of the trial Court. 3. Whereas it is the contention of the learned counsel for the accused that there is nothing to interfere with the reasoned finding of the first appellate Court for the ingredients of offence under Section 415 IPC not made out. 4. Perused the material on record. For sake of convenience the parties are being referred as arrayed before the trial Court. 5. Now the points that arise for consideration in the appeal are: 1. Whether there is cause of action for the offence under Section 138 of the N.I. Act and Section 420 IPC in filing the private complaint under both the provisions of law and if so, the trial Court went wrong in not taking cognizance under Section 138 of the N.I. Act but for the offence under Section 420 IPC and from that whether the 1st appellate Court went wrong in setting aside the trial Court conviction judgment for the offence under Section 420 IPC and how far it requires interference by this Court including on the contention of the offence under Section 138 of the N.I. Act made out, without even preferring any revision or appeal by attacking the correctness of not taking the cognizance of offence before the trial Court under Section 138 of the N.I. Act, that was made final? 2. To what result? POINT No. 1: 6. No doubt, the latest expression of the Apex Court (3 Judges Bench) in MSR Leathers vs. S. Palaniappan held that dishonour of cheque and giving of notice, no bar for successive presentation and giving of notice from the subsequent presentation and dishonour and filing of private complaint case. 2. To what result? POINT No. 1: 6. No doubt, the latest expression of the Apex Court (3 Judges Bench) in MSR Leathers vs. S. Palaniappan held that dishonour of cheque and giving of notice, no bar for successive presentation and giving of notice from the subsequent presentation and dishonour and filing of private complaint case. From this expression, it is the contention to say the trial Court went wrong in not taking cognizance of the complaint also for the offence under Section 138 of the N.I. Act. It is not even a case of cognizance taken and ultimately from the evidence on record held, the offence under Section 138 of the N.I. Act not made out, as at the beginning cognizance itself was not taken and that was not questioned by the complainant by filing any revision or appeal or other proceeding even before this Court under Section 482 Cr.P.C. Having the same made final, by virtue of the subsequent expression of the Apex Court supra, it is not left open to the complainant to raise the issue in view of the legal bar. Coming to the offence under Section 420 IPC, no doubt the full bench judgment of this Court in OPTS Marketing (P.) Ltd. (supra) speaks from para. 29(11) that mainly placed reliance in the conclusion portion that "Even after introduction of Section 138 of the N.I. Act, prosecution under Section 420 IPC is maintainable in case of dishonour of cheques or post dated cheques issued towards payment of price of the goods purchased or hand loan taken, or in discharge of an antecedent debt or towards payment of goods supplied earlier, if the charge sheet contains an allegation that the accused had dishonest intention not to pay even at the time of issuance of cheque, which was dishonoured caused damage to his mind, body or reputation, private complaint or F.I.R. alleging offence under Section 420 IPC for dishonour of cheques or post dated cheques cannot be quashed under Section 482 Cr.P.C., if the averments in the complaint show that the accused had, with a dishonest intention and to cause damage to his mind, body or reputation issued the cheque which was not honoured. No doubt, said expression in subsistence laid that even for an antecedent debt cheque issued with dishonest intention not to honour and to cause damage to mind, body or reputation the offence under Section 420 IPC attracts to sustain. Here, that no way can be stretched to present facts, for the reasons that for the first presentation and dishonour of the cheque, notice dated 12.12.1997 was issued that notice not seen light of the day, no doubt stated not necessary for purpose of the case. Even from the Ex. P. 3-notice dated 13.04.1998 from cheque dishonour memo dated 03.04.1998, it is important to consider whether the complainant could not make out any averment to constitute offence under Section 420 IPC, as but for saying the cheque given for insufficiency of funds, said notice is silent of complainant is with any fraudulent or dishonest intention on the part issued the cheque that caused damage to his mind, body or reputation. It is even mentioned for the first time in the private complaint, when that was not taken cognizance for the offence under Section 420 IPC, the complaint should have impugned the same later, having waived that right for not disputing it, it is not open to raise the same at his appellate stage on the principle of obiter, waiver or estoppel. When such is the case, there is nothing to interfere with the conclusion arrived by the first appellate Court in reversing the conviction judgment of the trial Court. No doubt, P.W. 5 deposed that the accused issued stop payment notice to the Bank saying the cheque issued by him was lost. It is submitted by the learned counsel for the appellant-complainant that it is the part of the offence of cheating. Herein that was not part of cause of action to the complainant case admittedly. The offence of cheating punishable as per Section 415 IPC is one year for which under Section 468 Cr.P.C. one year limitation but for if that is an offence under Section 418 IPC or 420 IPC or 468 Cr.P.C. from that stop payment letter and the dishonour of the cheque there from to compute the period of limitation to count there from. Thus from said subsequent cause of action if at all another case by private complaint or police report as the case may be to maintain, beyond that for this Court in answering the appeal lis on hand, there is nothing more required to observe. Accordingly, Point No. 1 is answered. POINT No. 2 7. In the result, criminal appeal is dismissed, confirming the acquittal finding of the first appellate Court. There is no order as to costs. 8. As a sequel, Miscellaneous Petitions, if any in this appeal shall stand closed. Appeal dismissed