ORDER : Though, this matter is listed for admission, as respondent Nos.(a) to (e) have remained unrepresented, heard learned counsel for petitioner on the merits of the case. 2. The petitioner has been facing prosecution before the trial Court for the alleged offence punishable under Section 138 of The Negotiable Instruments Act, 1881 (for short ‘N.I. Act’). 3. The case of the respondent/original complainant is that towards repayment of the amount received, the petitioner gave a cheque for Rs.2,50,000/drawn on Vijaya Bank, Besagaranahalli Branch, Maddur Taluk, bearing No.792136 dated 05.01.2006. The said cheque when presented by the respondent for encashment on 06.01.2006 through his banker viz., Indian Bank, Bhadravathi, the same was dishonoured for the reason ‘payment stopped by drawer’. Thereafter, inspite of complainant’s repeated requests and demands, the petitioner/accused having failed to repay the amount covered under the cheque, complainant is said to have issued a legal notice dated 28.01.2006 through registered post and under postal certificate. The notice sent under RPAD was returned to the sender, whereas, the notice sent under certificate of posting has been duly delivered. Thus, the complainant sought prosecution of the petitioner/accused for the alleged offence. 4. After entering appearance, the petitioner/accused moved an application under Section 245 of Cr.P.C. The same was dismissed by an order dated 12.06.2013. Thereafter, the petitioner/accused approached this Court under Section 482 of Cr.P.C., seeking to quash the entire proceedings on the ground that the deceased-respondent namely, the complainant had no cause of action to proceed against the petitioner as the subject cheque was totally different from the one averred in the petition. 5. I have heard the learned counsel for the petitioner and perused the records. 6. The averments made in the complaint go to show that the cheque issued by the accused was for Rs.2,50,000/and it was drawn on Vijaya Bank, Besagaranahalli Village, Maddur Taluk, bearing No.792136 dated 05.01.2006. But, during his sworn statement, though the complainant produced this cheque as ExP1, yet, the dishonored memo issued by the collecting bank viz., Visveshwaraya Grameena Bank, Besagaranahalli indicate that a cheque bearing No.11828 for Rs.1,85,000/dated 05.01.2006 has been returned unpaid for ‘funds insufficient’. There is no document to show that the cheque dated 05.01.2006 bearing No.792136 purportedly issued by the petitioner/accused towards repayment of debt of Rs.2,50,000/has been dishonoured. There is no document to show that the cheque dated 05.01.2006 bearing No.792136 purportedly issued by the petitioner/accused towards repayment of debt of Rs.2,50,000/has been dishonoured. In the absence of this crucial document, there is absolutely no basis for the complainant to proceed against the petitioner for the alleged offence punishable under section 138 of N.I. Act. Needless to say, the prosecution for an offence under section 138 of N.I. Act could be initiated only when the cheque drawn by the accused on an account maintained by him with a banker for payment of any amount of money to another person from out of that account, for discharge, in whole or in part, of any debt or other liability is returned by the bank unpaid. In the instant case, there is absolutely no material to show that the cheque issued by the petitioner/accused viz., cheque bearing No.792136 dated 05.01.2006 has been dishonoured by the bank for the reason that it exceeds the amount arranged to be paid from the account of the petitioner. As such, the essential ingredient of the alleged offence having not been made out, there is absolutely no basis for the complainant to institute proceedings seeking prosecution of the petitioner under section 138 of N.I. Act. Though this defect was brought to the notice of the learned magistrate, yet, the learned magistrate appears to have proceeded to issue summons to the petitioner as if the cheque issued by the petitioner was dishonoured rendering him liable for prosecution under section 138 of N.I. Act. Even when the petitioner moved an application under section 245 of Cr.P.C seeking to discharge him on the ground that the dishonoured memo produced before the Court did not relate to the cheque purported to have been issued by him, without considering the said issue, the learned magistrate dismissed the said application solely on the ground that the application under section 245 of Cr.P.C. is not tenable in a summary proceedings under section 138 of N.I. Act. The learned magistrate failed to consider that the essential ingredient of the offence were not made out by the accused and that there was no prima facie proof to show that the cheque issued by the petitioner/accused towards discharge of the alleged debt or liability was dishonoured for insufficient funds. The learned magistrate failed to consider that the essential ingredient of the offence were not made out by the accused and that there was no prima facie proof to show that the cheque issued by the petitioner/accused towards discharge of the alleged debt or liability was dishonoured for insufficient funds. According to the complainant, the cheque in question was dishonoured on account of mandate given by the petitioner to stop the payment of the said cheque. Even in this regard, no material was produced before the Court, as such, there was no cause of action whatsoever for the original respondent/complainant to continue the prosecution against the petitioner. For the said reasons, the prosecution initiated against the petitioner being illegal, continuation of said proceedings would be nothing but an abuse of process of Court. Hence, the impugned order as well as proceedings initiated against the petitioner under section 138 of N.I. Act, in my view, cannot be sustained. As a result, the petition deserves to be allowed. Accordingly, the petition is allowed. Impugned order dated 29.03.2006 and the proceedings pending in C.C.No.4604/2006 on the file of I Additional Civil Judge & JMFC, Bhadravathi are quashed.