Delay in filing suit for 138
SAPNA KANNAIDAS
(Querist) 04 November 2011
This query is : Resolved
Dear All,
A company issued notice u/s 138 to a party for dishonour of cheque. The other party has a time of 15 days after its receipt to make payment and after that gets over, the company will have to file it within 30 days. However, the company has missed to file a suit within the said time of 30 days and there is a delay of 4-5 days now. Can the company still file a suit and if yes, what strong reason could be given?
Pls guide urgently.
Regards,
Sapna Kannaidas
R.Ramachandran
(Expert) 04 November 2011
The Company will not be in a position to file a complaint under section 138 N.I. Act, since the time limit for filing the complaint is already over.
However, the company can file a summary suit under Order 37 if the ingredients are present.
Otherwise, it has to file a regular suit for recovery.
ajay sethi
(Expert) 04 November 2011
if there is delay of 5 days in filing complaint you have to satisfactorily explaint he reasons for delay . make an application for condonation of delay .
142. Cognisance of offences-
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974),-
(a)_ _ _ _ _ _ _ _ _
(b) such complaint is made within one month of the date on which the cause-of-action under clause (c) of the proviso of Section 138:
Provided that the cognizance of a complaint may be taken by the
Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period."
ajay sethi
(Expert) 04 November 2011
sec.142, sec.138 N.I. act - daughter marriage is sufficient ground for condone delay.
posted 15 Mar 2011 05:59 by MURALI MOHAN ,MANDAGADDI In the instant case, the reason explained by the complainant-petitioner herein for not making a complaint within the statutory period, i.e., on or before 20.08.2010, is that as his daughter’s marriage was performed on 25.08.2010, he could not contact his advocate within the stipulated time and make the complaint within time. The same appears to be plausible. In fact, the Court below ought to have accepted the said explanation offered by the petitioner. Of course, it is the absolute discretionary power vested in the Court below and the Court below may either accept the said explanation or reject the same. However, now that this Court is satisfied with the said explanation offered by the petitioner in not filing a complaint within the stipulated period, this Court is inclined to condone the said delay.
THE HON'BLE SRI JUSTICE GOPALA KRISHNA TAMADA
CRIMINAL REVISION CASE No.232 OF 2011
JUDGMENT:
This Criminal Revision Case is directed against the order, dated, 25.11.2010 passed by the VIII Additional Chief Metropolitan Magistrate, Hyderabad in Crl.M.P.No.6793 of 2010 in C.C.(SR).No.7382 of 2010, whereby a petition filed under Section 142 of the Negotiable Instruments Act, 1881, seeking to condone the delay of 56 days in filing the complaint under Section 138 of the Negotiable Instruments Act was dismissed.
The brief facts of the case are that there are money transactions between the petitioner and the first respondent herein and in lieu thereof, a cheque bearing No.495926, dated 26.05.2010, for an amount of Rs.50,000/- drawn on ING Vysya Bank, Hyderabad Race Club Ec branch, Malakpet, Hyderabad was given by the first respondent-accused to the petitioner herein and when the said cheque was presented by the petitioner with the banker, it was returned with an endorsement “funds insufficient”. Thereafter, he got issued a legal notice to the accused on 06.07.2010 and that, after the lapse of the statutory period provided for under the provisions of the Negotiable Instruments Act, a complaint was filed. The complaint was to be filed on or before 20.08.2010, but, however, the same was filed after 56 days of the said date along with a petition to condone the said delay and as stated supra, the same was dismissed and hence, the petitioner approached this Court and filed this Revision.
As the issue to be decided in the said Revision is between the Court and the petitioner, the usual notice to the private respondent-accused is dispensed with.
Heard learned counsel for the petitioner and perused the material papers on record.
From a perusal of the petition filed by the petitioner, it is clear that the complaint should have been lodged on or before 20.08.2010, but as there was a delay of 56 days in filing the complaint, an application to condone the said delay was filed.
Section 138 of the Negotiable Instruments Act has come into existence only to curb the menace of issuing the cheques even without having any bank balance. The said enactment came into force by Act No.66 of 1988 with effect from 01.04.1989. As per the original provisions of Section 142 of the Negotiable Instruments Act, a Magistrate is empowered to take cognizance of any offence punishable under Section 138, provided that the complaint is made in writing by the payee within a period of one month of the date on which the cause of action arose under Clause (c) of the proviso to Section 138 of the Negotiable Instruments Act. However, subsequently, by Act No.55 of 2002, Section 142 of the Negotiable Instruments Act was amended with effect from 06.02.2003 and a proviso has been inserted. The said proviso reads as under: -
“Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period.”
The very purpose of inserting the said proviso to Section 142 of the Negotiable Instruments Act is to give liberty to the payees to present the said complaint even after the expiry of the said statutory period of 30 days. Of course, the payee shall satisfy the Court that there are sufficient grounds in not making a complaint within such period.
In the instant case, the reason explained by the complainant-petitioner herein for not making a complaint within the statutory period, i.e., on or before 20.08.2010, is that as his daughter’s marriage was performed on 25.08.2010, he could not contact his advocate within the stipulated time and make the complaint within time. The same appears to be plausible. In fact, the Court below ought to have accepted the said explanation offered by the petitioner. Of course, it is the absolute discretionary power vested in the Court below and the Court below may either accept the said explanation or reject the same. However, now that this Court is satisfied with the said explanation offered by the petitioner in not filing a complaint within the stipulated period, this Court is inclined to condone the said delay.
Accordingly, the Criminal Revision Case is allowed and the impugned order is set aside. Further, the Court below is directed to take up the complaint made by the petitioner herein as provided for under Section 200 Cr.P.C. and follow the procedure provided thereafter and decide the case, in accordance with law.
___________________________________
JUSTICE GOPALA KRISHNA TAMADA
11th February 2011
DR
Sankaranarayanan
(Expert) 04 November 2011
yes if the genuine reason for delay then it can be.
Mr sethi given well citation for your query.
it is very useful .
Guest
(Expert) 04 November 2011
the company can file the complaint by filing condone delay petition. kindly refer the section 138 and 142 N.I act
SAPNA KANNAIDAS
(Querist) 04 November 2011
Since it is a corporate, what strong reasons could be given for a delay of 5 days?
ajay sethi
(Expert) 04 November 2011
you have to make out a case .consult your local lawyer .
prabhakar singh
(Expert) 04 November 2011
1]So far suit is concerned[as mentioned by in the very post of yours]there is no delay at all as the limitation to file the suit is three years from the date cheque got bounced and intimation got received.
2] However since talk of delay is going on then it appears company is intended to file a criminal case under section 138 of NI Act.
One thing is certain that Magistrate has powers to condone delay caused for sufficient reason.
Now you find it problematic that as it is company what reasons could be pleaded for condoning delay.
It is a common knowledge that despite the fact that a company is judicially recognized entity but simultaneously it is an artificial personality then it needs human hands and mind to work for it,there might be or would be needed person duly authorized to act on behalf of the company in this respect and the cause of delay would be explained by him,he may go sick,etc.
Guest
(Expert) 04 November 2011
Dear Sapna,
prima facie, a company is a "artificial person created y law", so it can have some reasons subjected to sufficient ground to belief, just go through the last lines of our Adv. Sing Sb.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 04 November 2011
