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IN THE HIGH COURT OF KARNATAKADHARWAD BENCH

DATED THIS THE 18TH DAY OF DECEMBER 2015

BEFORE

THE HON’BLE MR. JUSTICE BUDIHAL. R.B

CRIMINAL APPEAL No.2686/2009

BETWEEN:

M.R.ACHUT KUMARS/O M RAMAKRISHNA

AGED ABOUT 48 YEARS,PROPRIETOR OF VIVEK ENTERPRISESOPP:COURT, COLLEGE ROADR/O KISHKINDE ASHRAMHOSPET, POST & TALUKBELLARY-583201. ...APPELLANT

(BY SRI GODE NAGARAJA, ADV.)

AND

SHEKHARS/O NOT KNOWNAGED ABOUT 40 YEARS,PROPRIETOR OF SHEKHAR TRANSPORTC/O VIJAL NAIDUR CHEMICALSPLOT NO.179/180, 3RD STAGE, KAIDB,

INDUSTRIAL ESTATEBELLARY-583201. ...RESPONDENT

(BY SRI J BASAVARAJ, ADV.)

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THIS APPEAL IS FILED U/S 378(4) CR.P.CPRAYING TO SET ASIDE THE JUDGMENT AND ORDER

DATED: 14.11.2008 PASSED BY THE PRINCIPAL CIVILJUDGE (JR.DN.) & JMFC, HOSPET, IN C.C.NO.1369/2007, AND CONVICT THE RESPONDENT FORTHE OFFENCE PUNISHABLE UNDER SECTION 138 OFN.I. ACT.

THIS APPEAL COMING ON FOR FURTHERHEARING HAVING BEEN HEARD AND RESERVED FORJUDGMENT ON 25.11.2015, THIS DAY, THE COURTPRONOUNCED THE FOLLOWING:

JUDGMENT

The judgment and order of acquittal dated

14.11.2008 passed by the Prl.Civil Judge(Jr.Dn.) &

JMFC, Hospet in C.C.1369/2007 has been challenged

in this appeal.

By the said judgment and order, the trial Court

acquitted the respondent/accused for the offence

punishable under Section 138 of Negotiable

Instruments Act.

2. The brief facts of the case of the appellant-

complainant before the trial Court that accused has

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requested the complainant to advance loan of

Rs.10,00,000/- to meet his transport business. The

complainant advanced hand loan of Rs.10,00,000/- to

the accused and for discharge of legally recoverable

debt, the respondent herein had issued the cheque

dated 11.11.2006 for a sum of Rs.10,00,000/- drawn on

State Bank of Mysuru, Main Bazar Branch, Ballari, in

favour of the complainant. When the said cheque was

presented for encashment it was dishonoured with an

endorsement “payment stopped by the drawer”. After

dishonour of the cheque, complainant got issued legal

notice calling upon the accused to pay the cheque

amount and inspite of service of said notice, accused

failed to make the payment thereunder within the

stipulated time. Hence, the complainant filed the

private complaint before the trial Court for the alleged

offence under Section 138 of N.I.Act.

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In response of the summons, the

respondent/accused appeared in the said case and

participated in the proceedings.

On the side of the complainant, complainant has

been examined as P.W.1 and got marked 10 documents

as per Exs.P-1 to P-10 and on the side of the defence,

the respondent/accused examined himself as D.W.1

and one witness as D.W.2 and he has produced the

documents marked as per Exs.D-1 and D-2.

After considering the merits of the case,

ultimately, the trial Court acquitted the

respondent/accused. Being aggrieved by the said

judgment and order, the appellant/complainant is

before this Court and he has challenged the legality and

correctness of the said judgment of the trial Court on

the grounds as contended in paragraph Nos.9 to 20 of

the appeal memorandum.

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3. Heard the arguments of the learned counsel

appearing for the appellant/complainant and the

learned counsel appearing for the respondent/accused.

4. Learned counsel for the

appellant/complainant has submitted that with regard

to the accused borrowing a sum of Rs.10,00,000/- and

issuing the cheque in favour of the complainant are

admitted by the accused during the course of his cross-

examination. On 30.05.2007 the complainant issued

the notice by RPAD, which was returned back on

02.06.2007, but the notice sent under certificate of

posting was served on the respondent-accused. He has

also submitted that accused sent the reply notice as per

Ex.P-8. Looking to the contents of the reply sent by the

respondent-accused, the defence taken in the reply

notice and the one taken in the proceedings during the

course of trial are totally different.

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He has submitted that though it is the contention

of the respondent/accused that notice as per Ex.D-2

was served on the respondent/accused and

immediately, thereafter the cause of action arouse for

the complainant to file the complaint before the trial

Court, and the complaint filed before the trial Court was

barred by time and it was not as per the requirement of

Sections 138 (b) and 142 of N.I.Act.

Learned counsel for the appellant has further

submitted that the oral evidence of D.W.1, who is the

accused, is very clear that he has not received the notice

as per Ex.D-2. Hence, he has submitted that inspite of

such admission by the respondent/accused himself, the

lower Court wrongly read the evidence and wrongly

came to the conclusion that cause of action arouse to

the complainant when Ex.D-2 notice was served on the

accused. He has submitted that regarding the service of

notice Ex.D-2 on the accused there is no acceptable and

cogent material placed by the respondent/accused and

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the trial Court also wrongly presumed that it was served

on the respondent. Hence, learned counsel has

submitted that though the witness D.W.2, the advocate,

has been examined on the side of the

respondent/accused, but the cross-examination of both

D.Ws.1 and 2 clearly shows that Ex.D-2 was not served

on the respondent/accused and it also shows a sort of

collusion between the accused and D.W.2. Hence, he

has submitted that the trial Court wrongly appreciated

the entire materials placed on record and wrongly

acquitted the respondent/accused.

Hence, he has submitted that complainant has

proved his case with worth believable material and

hence, submitted to allow the appeal and to set-aside

the judgment and order of acquittal passed by the trial

Court and to convict the respondent/accused for the

offence punishable under Section 138 of N.I.Act.

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In support of his contention, learned counsel for

the appellant has relied upon the following decisions

filed along with the memo dated 06.11.2015.

i. AIR 2001 SC 676 in the case of

M/s.Dalmia Cement (Bharat) Ltd., v.

M/s.Galaxy Traders and Agencies Ltd.

and others.

ii. 2008 (4) Kar.L.J.279 in the case of

Gangadhar v. Raghunathasa.

iii. 2012 (5) Kar.L.J.165 in the case of

Smt.Dhakshayani v. Smt.Malathi

Dayan.

iv. 2013 (1) Kar.L.J.283 in the case of

M.S.Srikara Rao v. H.C.Prakash

5. Per contra, learned counsel for the

respondent/accused during the course of his arguments

has submitted that the complainant has suppressed the

material facts in this case. Though the complainant got

issued legal notice to the respondent through D.W.2

advocate, at the first instance when the

respondent/accused brought to the notice of the Court

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about the issuance of such notices on behalf of the

complainant by D.W.2, then only the complainant gave

answers about the same. Learned counsel has

submitted that though the notices were issued by D.W.2

on behalf of the complainant to the respondent/accused

by RPAD and also by UCP (Under Certificate of Posting),

the notice sent by RPAD was not served on the accused

and it was returned back, but the notice sent through

UCP was served on the respondent/accused. Hence, it

is submitted that when once the postal cover under

Ex.D-1 was sent with correct address, then under

Section 27 of the General Clauses Act, 1897, there is a

presumption under law that, it is presumed to have

been served on the addressee.

Learned counsel has submitted that this aspect

has been properly appreciated by the trial Court and it

considered the evidence both oral and documentary of

both sides and came to the conclusion that Ex.D-2-

notice was served on the respondent/accused and

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hence, the cause of action for the purpose of limitation

arises then and there only. Learned counsel has further

submitted that regarding the issuance of such notice to

respondent/accused, D.W.2, who has been examined on

the side of the accused, has consistently deposed about

the issuance of such notice to the respondent/accused.

Hence, he has submitted that the trial Court correctly

read the evidence and rightly acquitted the accused.

Learned counsel has submitted that regarding the

alleged collusion between D.Ws.1 and 2 is concerned,

the complainant has not placed any cogent and

acceptable material before the trial Court. Hence, he

submits that trial Court is justified in acquitting the

respondent/accused and no illegality has been

committed by the trial Court. Hence, submitted to

dismiss the appeal. In support of his contentions,

learned counsel for the respondent/accused has relied

upon the following decisions filed along with the memo

dated 25.11.2015.

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i. (2005) 4 SCC 417 in the case of Prem

Chand Vijay Kumar v. Yashpal Singh

and another.

ii. 1998 Cri.L.J.4066 in the case of

Sadanandan Bhardan v. Mahdavan

Sunil Kumar.

6. In reply, learned counsel for the

appellant/complainant again submitted that during the

course of cross-examination the respondent/accused

unequivocally admitted that Ex.D-2 notice was not

served on him and even in the reply notice sent to the

complainant for the subsequent notice, the accused has

not at all mentioned about he received the notice under

Ex.D-2. Hence, submitted to allow the appeal as prayed

for.

7. I have perused the averments made in the

complaint filed before the trial Court, grounds urged in

the appeal memorandum, judgment and order of

acquittal passed by the trial Court and also the

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exhibited documents and oral evidence of the parties

adduced before the trial Court.

8. The main contention of the

respondent/accused in the case is that the complainant

after dishonour of the cheque, issued the legal notice

under Ex.D-2 under certificate of posting in the cover

Ex.D-1 and same was served on the

respondent/accused and hence, cause of action started

then and there only, therefore, the complaint filed by

the appellant/complainant is barred by the law of

limitation.

9. But it is the contention of the appellant/

complainant that said notice was not at all served on

the respondent/accused, even according to the oral

evidence of respondent/accused. Hence, the notice

issued subsequently i.e., under Ex.P-4, which was sent

under certificate of posting was served on the

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respondent/accused, but the notice under RPAD was

returned un-served, which was produced as per Ex.P-7

and the respondent/accused sent his reply to the said

notice as per Ex.P-8 to the notice sent under Ex.P-4.

Hence, it is his contention that the cause of action for

filing the private complaint arouse when the reply notice

was issued as per Ex.P-8.

10. However, considering the oral evidence of the

parties, so also the documentary evidence i.e., Exs.D-1

and D-2 and the evidence of D.W.2, the trial Court held

that the complainant has not complied the mandatory

provisions of Section 139 and 140 of N.I. Act, hence, the

question of considering the other aspects does not arise

and the trial Court answered the first point for

consideration in the negative and ultimately, dismissed

the complaint.

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11. Perusing the decisions relied upon by the

learned counsel for the accused before the trial Court,

which are referred by the trial Court in its judgment, the

principles enunciated in the said decisions cannot be

disputed.

But the main question for consideration is

regarding the factual aspect as to whether the

complainant has placed the materials to prove that

Ex.D-2 notice was not served on the

respondent/accused and hence, the cause of action

arose only when the complainant issued the subsequent

notice i.e., as per Ex.P-4, for which reply was sent by

the respondent/accused under Ex.P-8.

12. It is an admitted fact that complainant and

the accused person were known to each other. Perusing

the oral evidence of D.W.1 (respondent/accused), during

the course of his cross-examination, on page No.3 of the

deposition, he has deposed that he has seen the cheque

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shown to him, he admitted that he himself issued the

said cheque, even he has admitted the signature as per

Ex.P-1(a) is his signature. He has unequivocally

admitted that because of the transaction between

himself and the complainant, and admitting that he is

liable to the complainant to the tune of Rs.10,00,000/-,

he issued the cheque as per Ex.P-1. He has further

deposed that there is acquaintance between himself and

the complainant from the last 2-3 years and during this

period of 2-3 years, he is continuously in contact with

the complainant. Himself and the complainant used to

meet 2-3 times in a month in connection with the

transport business, but he denied that when he was in

need of money, he has taken a sum of Rs.10,00,000/-

as loan from the complainant. Even he has denied that

for the discharge of the said amount of Rs.10,00,000/-,

he has issued Ex.P-1 Cheque to the complainant. He

has denied the further suggestion that he is deposing

falsely that he has given the cheque as security in

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connection with the agreement. On page No.4 of his

deposition, he has deposed and admitted as true that

the notice sent by the complainant through Sri.Satish,

Advocate, was not personally served on him, but the

witness volunteered and deposed that complainant

informed over phone about the same. He denied the

suggestion that complainant has not at all spoken to

him over phone about he sending the notice through

Satish, Advocate, or about the cheque Ex.P-1. He

deposed that he has seen reply notice Ex.P-8, which

was according to his information and the contents of the

said reply notice are true. It is true that on Ex.D-1

cover, it is mentioned as door lock EzÉ and it is written

that same was sent back to the sender of the same and

then two lines are drawn and the writings are scored.

But witness voluntarily deposed that the said notice was

not returned back to the person, who sent it. He again

admitted unequivocally as true that Exs.D-1 and D-2,

the cover and the notice, respectively, are not served on

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him, but the witness volunteered and deposed that it

was in the factory. He has also deposed that before he

gave the application to the bank, he has not informed

the complainant not to present the cheque for

encashment. When it was presented to the bank, there

was a sum of Rs.10,00,000/- in his account to show the

same he has not produced any documents before the

Court.

13. D.W.2 Sri G.Satish S/o Shashidar, Advocate,

has deposed in his examination-in-chief that he has

seen the cover under Ex.D-1 and it is his office cover, he

has seen Ex.D-2 notice, it was issued by him on

20.12.2006 on behalf of Sri M.R.Achut Kumar i.e., the

complainant. The contents of Ex.D-2 are as per the

information furnished by his client and he issued Ex.D-

2 notice in connection with Ex.P-1 cheque.

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Generally, in the cheque bounce cases, when

statutory notice used to be issued, one will be sent

under RPAD and another will sent through UCP.

On behalf of the complainant, he sent the notice

under RPAD and UCP, after he issued the notice under

Ex.D-2, complainant has not at all went to him for filing

the case.

14. In his cross-examination, D.W.2 after seeing

Ex.D-1, has deposed that after issuing the same, he

cannot say that the notice sent by him was unserved

and returned back. Similarly, without looking the

document, he cannot say that the notice sent under

RPAD was unserved to the addressee and it has also

returned back. After seeing the document, he will say.

When it was suggested that in case, the notice

sent under RPAD and UCP were unserved and returned

back to the sender they used to be in his custody, the

witness answered if at all such documents returned

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back to him, he has given them to his client. He

admitted as true that in case, the notice sent under

RPAD or by any other mode was not served and

returned back to his address, they will be in his custody

and they will be continued to be in his custody till his

client comes and tell that he wants those documents.

When it was specifically suggested by the counsel

on behalf of the complainant to this witness that the

notice, which said to have been sent by him pertaining

to this case were not served to the address of the

accused and they were returned back, he has deposed

that he does not remember.

15. I have perused the cover Ex.D-1. It is

addressed to Sri Sekhar, Prop: Sekhar Transport, C/o.

Vijai Naidu Chemicals, Plot No.179/180, III Stage,

KAIDB Industrial Estate, BELLARY, and it is from

G.Satish, Advocate, 11/679, Bellary Road, Hospet-

583201, Phone No.222124 and Cell Phone

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No.9845011862. I have also perused Ex.D-2, it is the

notice dated 20.12.2006, it is on the letter head of said

G.Satish, Advocate, Bellary.

16. On Ex.D-1 cover it is mentioned as “Door

lock EzÉ so returned sender”. Then the said words are

scored by drawing two lines over the said writing. So

far as the evidence of D.W.1 (respondent-accused) is

concerned, he has clearly admitted that Ex.D-2 notice

was not personally served on him. Even if it is accepted

that the notice under Ex.D-2 was sent by Sri G.Satish,

Advocate, under the Cover Ex.D-1, on behalf of his

client i.e., the complainant to the accused; when it was

not served on the respondent/accused, as deposed by

him on oath, naturally the cover would have returned

back to the said Satish, Advocate, and it ought to be in

his custody.

Hence, the contention of the appellant-

complainant that the notice was not served on

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respondent-accused also gains support on the basis of

the endorsement on the said cover “Door lock EzÉ so

returned sender.” This aspect was not properly

appreciated by the trial Court. Even the trial Court

observed in his judgment that even though

respondent/accused admitted in his oral evidence that

it was not served on him that itself will not be sufficient

to disbelieve the contention of the respondent/accused.

This observation of the trial Court is not correct. Even

the trial Court has not appreciated as to how the

respondent/accused came into the custody of the said

cover when it was admittedly not served on him and if

the evidence of D.W.2, the advocate, is taken into

consideration, he has deposed that if the notice was

returned back to the sender, it will be either in his

custody or he will give it to his client i.e., complainant.

In view of this evidence of D.W.2 also, the custody of

cover under Ex.D-1 along with the notice Ex.D-2 with

the respondent/accused cannot be accepted.

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So far as the endorsement on the cover that “Door

lock EzÉ So returned sender”, the parties ought to have

examined the postal authorities before the trial Court to

clarify the controversy between the parties, which was

not done in the case.

17. Looking to the judgment of the trial Court,

the trial Court has discussed only about the issuance of

the notice and its service on the respondent/accused

referring to Exs.D-1 and D-2 and observed that since

the notice under Ex.D-2 was served on the

respondent/accused, the complainant has not complied

with mandatory requirements of Sections 138 and 142

of the N.I.Act, hence, the question of considering the

other aspects of the matter does not arise. So it clearly

shows that the trial Court has not touched the other

aspects because it held that Ex.D-2 notice was served

on the respondent/accused.

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18. Looking to the judgment of the trial Court at

paragraph 8 “r”, at page No.12, it is observed by the

trial Court that advocate for complainant has

vehemently argued, and relied the ruling of Honorable

High Court of Karnataka reported in 2008 (4) Kar.L.J

279 wherein, the Honorable High Court of Karnataka

held the dictum in Gangadhar V/s.Raghunathasa, and

the trial Court extracted the said dictum in its judgment

on page 12-13. And on page No.13 at sub para “s”. it is

observed by the trial Court that in the above said

decision Honorable High Court of Karnataka held

“Cause of action for filing complaint does not commence

merely on issuance of notice under clause (b) to proviso

to Section 138 of N.I.Act. It commences from date of

service of such notice on drawer of cheque. The trial

Court also mentioned in paragraph “u” that no doubt in

the said decision reported in 2008 (4) Kar.L.J 279,

Honorable High Court of Karnataka, discussed the

ruling of Honorable Supreme Court of India reported in

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1998 Crl.L.J.4066. But the trial Court again held that

the said decision will not come to the aid of the

complainant, because the accused established that

Ex.D-2 sent by the complainant was served on him.

19. Let me refer to the oral evidence of the

complainant P.W.1 also, who filed his affidavit in lieu of

examination-in-chief, wherein he reiterated the contents

of the complaint filed under Section 200 of Cr.P.C and

he was further examined and got marked the

documents Exs.P-1 to P-10. He denied the suggestion

in the cross-examination that on 06.11.2006 there was

a contract in between himself and the accused

according to which 860 metric ton of iron ore was

agreed to be transferred from the mines plot Shiraguppa

to Krishnapatanam port, Andhra Pradesh by the

accused. He also denied the suggestion that as a

security for the said transport business, the accused

gave the said cheque to him. He admitted as true that

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he filed the case against one Satish Pritam in the

Addl.Civil Judge (Jr.Dn.) for the cheque amount of

Rs.1,25,000/-. He has further admitted that in the said

case on his behalf Sri.G Satish, Advocate, was

conducing the said case. He admitted that once he

presented the said cheque on 13.12.2006 at Indian

Bank, Hospet Branch for encashment, but it was

returned back with an endorsement that “Insufficient

Funds”. But he denied the suggestion that after

dishonour of the said cheque on 20.12.2006, he got

issued the notice to the accused through Sri G.Satish,

Advocate. He has further denied the suggestion that the

notice dated 20.12.2006, which was sent through UCP

was served on the accused and the notice sent through

RPAD was returned back as the door was locked. Then

the cover was shown to him in the open Court and he

denied the suggestion that the said cover was sent

through his advocate informing about the bouncing of

the cheque. He has also denied the suggestion that

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after sending the cover, he also informed the accused

over phone that he has sent the notice and asked him

that after receipt of the said notice to make the payment

of the said cheque. He denied the further suggestion

that accused has not at all borrowed any loan from him

and the cheque, which was given as a security, has

been misused by him.

20. Therefore, looking to this oral evidence of the

complainant, nowhere he has admitted that after

bouncing of the cheque on 13.12.2006, he got issued

the earlier notice on 20.12.2006 through G.Satish,

Advocate, who has been examined as D.W.2 in this

case. Therefore, looking to the entire oral evidence of

P.W.1 complainant, nowhere it has been established

with cogent and satisfactory material that complainant

sent notice as per Ex.D-2 with the cover Ex.D-1 and

same was served on the respondent-accused.

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21. Even looking to the suggestion made during

the course of cross-examination of P.W.1 that the

complainant got issued earlier notice on 20.12.2006 by

RPAD so also by UCP and the notice sent under RPAD

returned with an endorsement “Door lock EzÉ so

returned sender”, which probablises the contentions of

the complainant that no such notice was served on the

respondent-accused. This is why because even on the

cover Ex.D-1 also there is an endorsement, which

clearly shows that notice under Ex.D-2 was not served

on the respondent-accused.

22. Looking to the decisions relied upon by the

learned counsel for the appellant filed along with memo

dated 06.11.2015. The decision reported in AIR 2001

SC 676, wherein, Their Lordships have laid down the

proposition as under:

“(A) Negotiable Instruments Act (26

of 1881), S.1 – Interpretation – Act to be

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interpreted in light of objectives to be

achieved – Efforts to defeat objectives of

law to be discouraged.

(B) Negotiable Instruments Act

926 of 1881), Ss.138, 142 – Dishonour of

cheque – Limitation – Cause of action –

Arises from date of receipt of notice

demanding payment – First notice

demanding payment issued by payee –

Postal acknowledgment of notice received

– Contents of envelope however

disclaimed to be received by drawer –

Payee thereupon representing cheque and

on dishonour issuing second notice for

payment – Complaint filed within one

month of date of second notice – Not

barred by limitation.”

23. I have also perused the decision relied upon

by the learned counsel for the respondent-accused

produced along with the memo of citations dated

25.11.2015. The decision reported in 2005(4) SCC

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417, wherein Their Lordships have laid down the

proposition as under:

“A. Negotiable Instruments Act,

1881 – Ss.138 & 142(b) – Dishonour of

cheque – Cause of action to file

complaint on non-payment despite issue

of the notice, held, arises but once –

Another cause of action would not arise

on repeated dishonour on presentation of

same cheque again subsequent to non-

payment after the first notice – Payee is

free to present the cheque repeatedly

within its validity period but once notice

has been issued and payment not

received within 15 days of the receipt of

the notice, payee has to avail the very

cause of action arising thereupon and file

the complaint – Dishonour of cheque on

each presentation gives a fresh right to

present it again during the period of its

validity, but, held, it does not give ries to

a fresh cause of action – Complaint has

to be filed within one month from the

day immediately following the day on

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which the period of 15 days from the

date of receipt of the first notice by the

drawer expires – Criminal Procedure

Code, 1973, S.482.

B. Words and Phrases – “Cause of

action” – Meaning of – Civil Procedure

Code, 1908, S.20 – Criminal Procedure

Code, 1973, S.177.

C. Negotiable Instruments Act,

1881 – S.138 – Prosecution for offence

under – Facts required to be proved –

Restated.

I have also perused the another decision relied upon by

the learned counsel for the respondent-accused

reported in 1998 Cri.L.J.4066, wherein the Hon’ble

Apex Court has laid down following principle:

“Negotiable Instruments Act (26 of

1881), Ss.138, 142 – Dishonour of cheque

– Complaint – Cause of action – Arises and

can arise only once – Payee can present

cheque any number of times during the

period of its validity – On each

presentation and its dishonour a fresh

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right, and not cause of action, accrues in

his favour.

The principles enunciated in the decisions relied upon

by the learned counsel for the respondent-accused

shows that cause of action arises only once when the

statutory notice was issued by the complainant to the

accused and when it was served on him.

24. But here, the question is whether Ex.D-2

notice sent under UCP under Ex.D-1 cover was really

served on the respondent-accused, about which, I have

made a detailed discussion with reference to the oral

evidence of the parities so also the documents.

25. Perusing the entire materials placed on

record, I am of the clear opinion that there is no worth

believable material placed by the respondent-accused to

show that notice under Ex.D-2 was really served on

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him. Hence, the complaint filed by the appellant-

complainant is not barred by the law of limitation.

26. Looking to the oral as well as documentary

evidence and the principles enunciated in the decisions

relied upon by both sides, I am of the opinion that the

trial Court wrongly read the evidence and also the

position of law placed before it and wrongly held that

Ex.D-2 notice sent with the cover under Ex.D-1 was

served on the respondent-accused and hence, held that

complaint filed is barred by law of limitation. The

materials clearly shows that in reality, Ex.D-2 notice

was not served on the respondent-accused. Hence, the

judgment and order of acquittal passed by the trial

Court is illegal and not sustainable in law.

27. Perusing the judgment and order of acquittal

passed by the trial Court, the trial Court itself has

mentioned in its judgment that it considered the

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limitation aspect referring to Ex.D-2 and came to the

conclusion that the complaint filed by the appellant-

complainant herein is barred by time and it is

specifically observed by the trial Court that as the

complaint was barred by time and not maintainable, the

question of considering other merits of the case will not

arise. Therefore, this clearly shows that the other

merits of the case were not touched by the trial Court.

Under such circumstances, it is necessary for this Court

to remand the matter to the trial Court to consider the

matter afresh and to dispose of the same in accordance

with law giving opportunity to both the sides to lead

their further evidence, if any, so also to produce the

documents, if any. Hence, appeal is allowed and the

judgment and order of acquittal dated 14.11.2008

passed by the Prl.Civil Judge (Jr.Dn.) & JMFC, Hospet,

in C.C.1369/2007 is hereby set-aside and the matter is

remanded back to the trial Court for fresh disposal in

accordance with law.

: 34 :

However, it is made clear that the observations

made in the body of this judgment are only for the

purpose of disposal of this appeal and the trial Court

should not be influenced by the said observations while

considering the merits of the case and deciding the

same.

Sd/-JUDGE

BSR