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 (9N.I.Act9 for short) and to

set aside the judgment of the LV Additional City Civil and

3

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 8funds insufficient9. 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.

4

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.

5

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

6

Magistrate for any reason does not condone the delay in filling

the