Point of Law: It is settled principles of law that court being appellate court will not interfere in judgment of acquittal, unless it is shown that judgment of acquittal is on erroneous ground or it has resulted in miscarriage of justice or it is a perverse.

JUDGMENT :

P.N. DESAI, J.

1. This appeal arises out of judgment passed in C.C. No. 1740/2009 dated 14.06.2012 by the II Additional Civil Judge and JMFC, Shimogga wherein learned JMFC acquitted the accused for the offences punishable under Section 138 of Negotiable Instruments Act (for short hereinafter referred to as ‘N.I. Act’).

2. In brief the case of the complainant is that the accused had borrowed a sum of Rs. 1,50,000/- from the complainant and agreed to pay the same with interest @ 23% p.a. within five months from the date of borrowing the loan. In that connection, the accused had issued three cheques bearing Nos. 957442, 957443, 957444 dated 04.02.1998, 15.3.1998 and 31.3.1998 respectively. When the complainant presented those cheques for encashment on 22.06.1998, the said three cheques came to be dishonoured for want of sufficient funds. Therefore, the complainant issued demand notice dated 26.06.1998. The same was served on the accused and the accused gave a reply on 01.07.1998. But as the accused did not pay the amount, the complainant filed the complaint on 24.08.1998.

3. In order to prove his case, the complainant got examined himself as PW-1 and got marked eleven documents as Exs.P1 to P11. The respondent got examined himself as RW-1. But no documents are marked on behalf of respondent. After hearing the arguments, learned JMFC acquitted the accused on the ground that the complaint itself was time barred. Aggrieved by the same, the complainant has filed this appeal.

4. Heard Sri. Yogesh V. Kotemath for Sri. P.H. Virupakshaiah, learned counsel appearing for the appellant and Sri. Jagadeeshachari, learned counsel appearing for the respondent.

5. Learned counsel for the appellant argued that in view of Section 142(b) of N.I. Act, the appeal may be allowed and the matter may be remanded and an opportunity may be provided to the appellant to file an application seeking condonation of delay. Learned counsel in support of his arguments relied on the decision of Bombay High Court in the case of R.K. Chawla and Another vs. Goa Antibiotics, 2006 (1) ALD Cri. 62 and at paragraph No. 19, the Bombay High Court referred to Section 142(b) of N.I Act and held that it was open to the complainant in a pending case to take recourse to the proviso to Section 142(b) of N.I. Act. Further he relied on the judgment of coordinate bench of this Court in Crl. R.P. No. 1242/2021 dated 08.04.2022 in the case of M/s. A. Seating vs. M/s. Nandini Modulars, wherein the coordinate bench of this Court has dismissed the revision petition holding that the Court has to take note of the very proviso to Section 142(b) of N.I.Act, which confers jurisdiction upon the Court to condone the delay i.e. original Court or otherwise the very purpose and wisdom of the parliament would be defeated. With these arguments, learned counsel prayed to set aside the judgment of acquittal and remand back the matter to the Trial Court.

6. Against this, learned counsel for the respondent supported the judgment of acquittal and stated that the Trial Court has passed the well reasoned judgment and there is no need to interfere with the same.

7. I have perused the impugned judgment of acquittal and also other materials on record.

8. Admittedly, in this case, according to the complainant, the cheques were presented on 22.06.1998 and they were returned dishonoured on the same day for want of sufficient funds. Then the complainant issued demand notice on 26.06.1998 i.e. after four days of the dishonor of cheques. The postal acknowledgment is also produced and the same is marked as Ex.P8, but it does not bear any seal of the postal authority or any date or initial by the respondent. But Ex.P10 is the reply notice which bears date as 01.07.1998. Therefore, it is evident that the said notice was served on or before 01.07.1998 or on 01.07.1998 itself.

9. Section 138 of N.I. Act reads as under:

“138 Dishonour of cheque for insufficiency, etc. of funds in the account - Where any cheque drawn by a