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

- 3 -

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

- 4 -

case of R.K.Chawla and Anr. Vs. Goa Antibiotics reported in

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.

- 5 -

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