Nesargi, J.-In this appeal the correctness and legality of the judgment of acquittal, dated 30th December, 1976 passed by the Munsiff and Judicial Magistrate, First Class, Humnabad, in C.C. No. 389/3 of 1972 is questioned. 2. The appellant filed a complaint on 12th December, 1972 against the respondents alleging that the respondents were the Chairman of the Board of Management Ex-officio President of the Executive Committee of Bidar Shahkar Sakkare Karkhana Ltd., Hallikhed-B, Taluka Humnabad (hereinafter referred to as ‘the Co-operative Society’) and the Managing Director respectively of the Co-operative Society, which is running and processing sugar by purchasing sugarcane from the producers and crushing the same, the Co-operative Society has its mills in the market area of Humnabad Taluk, after much persistence by the Market Committee, the Co-operative Society was made to obtain a licence (evidently under section 8 of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966), (hereinafter referred to as ‘the Act’) for the year ending June, 1972, the entire Humnabad taluk is a market area, sugarcane is notified as an agricultural produce, and as such, the Co-operative Society is liable to pay market-fee as contemplated by section 65 of the Act. It is further alleged that as the Co-operative Society having failed to pay, is guilty of contravening the provisions of the Act and that the Society through the respondents has not only wilfully contravened the provisions of the Act, but also has carried out the functioning of the Society by carrying on the business of crushing sugarcane, namely, an agricultural produce, and as such, has committed offences punishable under sections 114, 115, 116 and 117 of the Act. 3. Summons were issued and served on the respondents. On the respondents appearing before the Magistrate, the Magistrate put the substance of the accusation to the respondents and they pleaded that they were not guilty and claimed to be tried. The appellant adduced evidence and thereafter the Magistrate recorded statements of the respondents as required by the provisions of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘old Code’). Ultimately, the Magistrate has concluded that the appellant had satisfactorily established that the Co-operative Society purchases sugarcane from the producers within the market area. But the respondents were not liable to pay "he market fee and that the Co-operative Society was not required to obtain a licence for the purchase of sugarcane. 4. Ultimately, the Magistrate has concluded that the appellant had satisfactorily established that the Co-operative Society purchases sugarcane from the producers within the market area. But the respondents were not liable to pay "he market fee and that the Co-operative Society was not required to obtain a licence for the purchase of sugarcane. 4. The findings of the Magistrate on points Nos. 2 and 3 are based on only one point, which is a point of law. The point of law is the one laid down by a Division Bench of this Court in Venkateswara Traders v. The Administrator, Agricultural Produce Market Committee, Chickballapur1. It is held therein that when alteration of a market area is made under section 5 of the Act, it is obligatory on the Chief Marketing Officer to specify any area in the market area to be a market and further to specify any place in the market to be a market yard; and that the market and market yard notified for the original market area and before the alteration declared under section 5, cannot be regarded as the market or the market yard ‘for the new market area and if no such notification has been made, the Market Committee would not be entitled to demand market fee. This decision is rendered on 16th November, 1971. 5. It is undisputed that the original market area had been altered in 1969 by the State Government by issuing, a notification under section 5 of the Act and the Chief Marketing Officer had not issued another fresh notification under section 6(2) of the Act. In view of these facts, the understanding of the law by the Magistrate, as laid down by this Court in Venkateswara Traders case1, cannot be found fault with it. 6. Sri K.A. Swamy, learned Advocate appearing on behalf of the appellant, argued that the view laid down in Venkateswara Traders case1, is not a correct view and that has been so held in The Secretary, Agricultural Produce Market Committee, Mangalore and another v. M/s. K. Appyya Shanbogue & Co. and others2, which is also a decision of a Division Bench of this Court. This decision has been rendered on 15th April, 1975. It may be mentioned here itself that in the latter decision, the Division Bench has expressed disagreement with the principle laid down in Venkateswara Traders case1. and others2, which is also a decision of a Division Bench of this Court. This decision has been rendered on 15th April, 1975. It may be mentioned here itself that in the latter decision, the Division Bench has expressed disagreement with the principle laid down in Venkateswara Traders case1. It is further expressed that even when they disagreed with the principle of law laid down in Venkateswara Traders case1, it was not necessary to refer the matter to a Full Bench, as on facts, there was distinction between the two cases. 7. So far as the finding on the first point is concerned, the same is not disputed before us. 8. On looking into the records, we find that it was on 19th December, 1972 the Magistrate took cognizance of the offences and directed the case to be registered. He also directed issue of summons to the respondents making the same returnable by 2nd January, 1973. The complaint discloses offences under sections 114, 115, 116 and 117 of the Act. The office of the Magistrate issued summons to the respondents, which are available in the records. Strangely enough, the summons mention that the respondents were to meet a case in which an offence under section 33 of the Indian Penal Code was alleged against them. It is plain that the summons issued to the respondents is quite contrary to the allegations contained in the complaint and in utter disregard to the contents of Form No. 1 in Schedule 5 of the old Code. Form No. 1 in Schedule 5 of the old Code is prescribed by virtue of section 555 and section 68 of the old Code. So, when the summons were served on the respondents, they were not aware as to what were the offences alleged against them. In the substance of the accusation, read over and explained to the respondents by the Magistrate, all that is put forth is that the Co-operative Society had not paid the market fee and therefore, had wilfully contravened and violated the provisions of the Act, Rules and the bye-laws framed thereunder and had committed offences punishable under sections 114, 115, 116 and 117 of the Act. It is to be noted that in the substance of accusation it is not mentioned that the Co-operative Society had not obtained a licence as required by section 8 of the Act and therefore, had contravened the provisions of section 8 of the Act and in view of that had committed an offence under section 117 of the Act. It may be remembered that such an allegation is also not in the complaint. In the evidence adduced by the prosecution there is no whisper of the fact that the Co-operative Society had not obtained a licence as required by section 8 of the Act, i.e., upto the date of filing of the complaint, and therefore, it had committed an offence under section 117 of the Act. No question pertaining to that aspect has been put to any of the respondents while recording their statements under section 342 of the old Code. Therefore, it cannot, in our opinion, be contended at this stage that the Magistrate has unduly acquitted the Co-operative Society of the offence under section 117 of the Act. 9. Section 65 of the Act provides for the levy of market fee. Non-payment of market fee is made a penalty by section 114 of the Act, which reads as follows: “114. Penalties for evasion of payment of fee, etc.-Any person who fraudulently evades the payment of any fee, or other amount due from him under this Act or the Rules, or the Regulations or Bye-Laws, shall, on conviction, be punished with fine which may extend to five hundred rupees, and in the case of a continuing evasion with a further fine which may extend to one hundred rupees for every day during which the evasion is continued after conviction therefor.” It is plain that one of the essential ingredients of section 114 of the Act is ‘fraudulently intent’. No allegation about such an intent is found in the complaint. It is not even found in the evidence adduced on behalf of the prosecution. Naturally, no question pertaining to this aspect has been put to the respondents while recording their statements under section 342 of the old Code. If such an intent is not made out, the offence under section 114 of the Act, cannot, in law, be said to have been made out. Naturally, no question pertaining to this aspect has been put to the respondents while recording their statements under section 342 of the old Code. If such an intent is not made out, the offence under section 114 of the Act, cannot, in law, be said to have been made out. In other words, mere non-payment or evasion of payment of market fee is not an offence, but fraudulently evading payment of market fee is an offence. Section 65 of the Act by itself does not create an offence. In view of this situation, on facts, there cannot be any conviction under section 114 of the Act. 10. Section 115 of the Act provides that when a person is prosecuted for an offence under section 114 of the Act and in such prosecution it is proved to the satisfaction of the Magistrate that a person had wilfully omitted to pay the market fee, that person would be liable to pay the amount to the market committee as due from him on taking accounts. Section 115 of the Act by itself does not create an offence much less makes it penal. 11. Section 116 of the Act lays down that whenever a person is convicted of an offence under the Act or the Rules or the Regulations or Bye-laws made thereunder, the Magistrate shall, in addition to any fine which may be imposed, recover summarily and pay over to the market committee the amount of fee due from him under the Act and so on. It is clear that section 116 of the Act comes into operation after a prosecution ends in conviction. When it comes into operation, it empowers the Magistrate to recover of certain sum as laid down therein. It does not create any offence. 12. Sri K.A. Swamy argued, that non-payment of market fee, wilfully, though not by itself an offence under section 114 of the Act, would be an offence under section 122 of the Act. Section 122 of the Act reads as follows: “122. It does not create any offence. 12. Sri K.A. Swamy argued, that non-payment of market fee, wilfully, though not by itself an offence under section 114 of the Act, would be an offence under section 122 of the Act. Section 122 of the Act reads as follows: “122. General provisions for punishment of offences.-Whoever contravenes any provision of this Act or any Rule, or Regulation thereunder shall, if no other penalty is provided for the offence, be punished with fine which may extend to two hundred rupees.” A plain reading of this section shows that for the application of this section there should be (i) contravention of any provision of the Act or any Rule or Regulation thereunder; (ii) such contravention should be an offence and (iii) no penalty for such offence has been provided in any of the provisions of the Act. 12. As already pointed out, mere non-payment of market fee or wilful evasion of payment of market fee is not made an offence. Section 114 of the Act makes evasion of market fee an offence if the same has been done fraudulently. Section 122 of the Act by itself does not create an offence, but provides for penalty for an offence. Hence, it must be shown that an offence under a particular provision has been committed and there is no provision prescribed for penalty for that offence. Then only section 122 of the Act operates. No such thing is available here. Hence, this argument has to fail. 13. Sri Swamy lastly argued that it was the duty of the Magistrate to record a finding as to whether the Co-operative Society had wilfully omitted to pay the market fee, as, on such finding being recorded, the liability of the Society would become operative by virtue of section 115 of the Act, as such, the Magistrate must be made to record a finding on this point. 14. As already pointed out, the Magistrate has disposed of the case only on the basis of a point of law and has not applied his mind to the evidence in order to find out whether the Co-operative Society had wilfully omitted to pay the market fee. But in the view taken by the Magistrate, on the question of law, he was right in disposing of the case on that basis only. But in the view taken by the Magistrate, on the question of law, he was right in disposing of the case on that basis only. In the view we have taken on the basis of allegations made in the complaint and the substance of the accusation put to the respondents, without going into the question of law, it becomes unnecessary to record a finding on this aspect. When we have found unnecessary to record a finding on this aspect, we cannot interfere with the judgment of acquittal only for the purpose of getting a finding recorded on this aspect by the Magistrate. Hence, we are unable to accept this reasoning also. In the result, this appeal fails and is dismissed.