Point of Law : Proviso of Section 142(b) of the N.I. Act which confers jurisdiction upon the Court to condone the delay.

ORDER :

This revision petition is filed praying this Court to set aside the judgment of the XII Additional and ACMM (SCCH-8), Bengaluru in C.C.No.12481/2017 dated 31.10.2019 convicting the petitioners herein for the offence punishable under Section 138 of the Negotiable Instruments Act (’N.I. Act’ for short) and to set aside the judgment of the LV Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.2458/2019 dated 17.09.2021 remanding the case to the Trial Court.

2. The factual matrix of the case of the respondent/complainant is that the complainant was running an industry in the name of M/s. Nandini Modulars. The accused gave an undertaking to the complainant that he will discharge the amount of Rs.13,58,921/-within 15 days and also issued four cheques as security to the said loan amount in favour of the complainant. On presentation of those cheques, the same were dishonoured with an endorsement as ‘funds insufficient’. Hence, the legal notice was issued on 03.02.2017 calling upon the accused to make payment of the dishonoured cheques amount and the said notice was duly served on the accused and inspite of service of notice, the accused had not complied with the same. Hence, the complaint was filed and cognizance was taken and the petitioners were secured and they did not plead guilty. Hence, the complainant examined himself as PW1 and got marked the documents at Ex.P1 to P60 and the accused not led any defence evidence. The Trial Court after considering both the oral and documentary evidence, convicted the petitioners herein. Hence, an appeal was preferred before the Appellate Court in Crl.A.No.2458/2019 wherein, the contention was taken that the complaint is barred by limitation and there is no application filed before the Trial Court and very initiation of the proceeding against the petitioners is erroneous and the Court also failed to take note of the material on record and committed an error in convicting the petitioners. The Appellate Court taking note of the grounds urged in the appeal, framed the points for consideration whether the complaint is liable to be dismissed in view of the delay and whether the judgment and sentence passed by the Trial Court requires interference and answered Point No.1 as negative and remanded the matter to consider the same afresh by giving an opportunity to the complainant to file necessary application for condonation of delay and directed the Trial Court to decide the application first and thereafter proceed with the matter as per law relying upon the judgment of the Apex Court in the case of Pawan Kumar Ralli and consequently, set aside the order of conviction and sentence passed by the Trial Court. Hence, the present revision petition is filed before this Court.

3. The learned counsel appearing for the petitioners would vehemently contend that the Appellate Court has wrongly relied upon the judgment of the Apex Court in the case of Pawan Kumar Ralli. The judgment of the Apex Court clearly says that it pertains to the peculiar facts of that case and it is not laying down a general proposition of law. The counsel would contend that there was a delay of seven days in filing the complaint and the Appellate Court wrongly observed that ground of delay was not raised at all before the Trial Court. It is contended that Appellate Court has no power under the Cr.P.C to remand the case to the Trial Court for the purpose of giving an opportunity to the complainant to file a condonation of delay application. The counsel would contend that by filing the complaint itself, the delay application ought to have been filed and the same is not filed and the question of giving an opportunity does not arise.

4. The counsel for the petitioners in support of his argument relied upon the judgment of this Court reported in 2015 (2) AKR 481 between G.RAVI v. SHIVANAND REVAPPA REBBANAVAR wherein it is observed that if the Magistrate for any reason does not condone the delay in filling the complaint, it wou