Ni act
m p sharma
(Querist) 26 April 2012
This query is : Resolved
Can a suit under section 138 ni acct be filed after the expiry of limitation period?
adv. rajeev ( rajoo )
(Expert) 26 April 2012
After the limitation you cannot file complaint u/s 138 of NI Act.
Arvind Singh Chauhan
(Expert) 26 April 2012
Only with application to condone delay, having sufficient reason.
Raj Kumar Makkad
(Expert) 26 April 2012
#Arvind! No application for condonation of delay is maintainable in 138 NI case.
Raj Kumar Makkad
(Expert) 26 April 2012
fist of all 138 NI Case is a complaint case and not a suit and secondly it is hyper technical case surrounded with the strict adherence to time. If notice is not issued within time or complaint is not filed within limitation, this complaint is not maintainable.
Anirudh
(Expert) 26 April 2012
Dear Mr Arvind you are right when you say that complaint u/s. 138 can be filed after limitation along with an application to condone delay, having sufficient reason.
I do not know where from and how the other experts say that "No application for condonation of delay is maintainable in 138 NI case."
I also do not know whether they are aware of the proviso to Sec. 142(b) or not, which permits that 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 the complaint within such period.
Whether ultimately one succeeds in getting condonation of delay or not from the court is altogether a different matter. What is being asked is whether one can file the complaint u/s. 138 after limitation.
The answer is, yes one can file, but an application for condonation of delay with sufficient reason is also to be filed along with the complaint.
N.K.Assumi
(Expert) 26 April 2012
Limitation Act is not applicable in NIA,.
Anirudh
(Expert) 26 April 2012
Dear Mr. Assumi,
I find your answer to be highly ambiguous.
By saying that Limitation Act is not applicable to NIA what do you want to say. Be clear.
Nobody ever said that Limitation Act is applicable to NIA Act. Then why do you say so?
The limited question is whether in case the limitation as prescribed for filing a complaint u/s. 138 NI is exceeded, can still one file a complaint u/s. 138 or not.
One would appreciate your answer to the above pointed question.
Shonee Kapoor
(Expert) 26 April 2012
No.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 26 April 2012
I agree with opinion expressed by Mr.Arvind
and supported by Mr.Anirudh.
Section 138 here refers to The Negotiable Instruments Act, 1881;its' section 142 lays about Cognizance of offences which is reproduced below to wash confusion laboring in mind of many of us:...
"142[Cognizance of offences
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).-
(a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138:
2["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.]
(c) No court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138]."
So I think Mr.Makkad wrongly reprimanded Mr.Arvind WHOSE OPINION LIKE Mr.ANIRUDH,I TOO HOLD CORRECT.
Mr.Assumi should know that there are many statute which have prescribed limitation.
He should also know that there is no provision to condone a delay caused in filing a suit even for a single day.
He should also know that if any civil suit for recovery is opted to be filed under the Negotiable Instruments Act then LIMITATION ACT SHALL APPLY.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 26 April 2012
Law is changing and even being redefined fast by higher courts so experts will have to remain updated .
I am at the receiving end many times even though I give very few comments , so it is my humble request to all that there may be different opinions since knowledge is not updated , PLEASE AVOID PERSONAL COMMENTS.
V R SHROFF
(Expert) 26 April 2012
JSDN, Any change recently??
Delay is condoned, Can Lodge 138 Compliant even after 45 days of receiving notice by accused, if complainant was not available, for justified and reasonable case.
m p sharma
(Querist) 26 April 2012
thanks.
what is your opinion about section 473 of crpc, which runs as ext. of period of limitation to certain cases. Will it be applicable in NI act.
please comment
Regards
M.P. sharma
adv.
prabhakar singh
(Expert) 26 April 2012
No! limitation under section 473 cr.p.c has no application for offences under 138 of NI act only section 142 of NI Act would be applicable.
Dr J C Vashista
(Expert) 27 April 2012
NI Act provides complete procedure and no condonation of delay is allowed, however, civil suit under order XXXVII CPC be filed
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 April 2012
Shroff sir this is updodate position of law for cheque bounce delay condonation=
The Negotiable Instruments Act, 1881
142. Cognizance of offences
1[Cognizance of offences
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).-
(a) No court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) Such complaint is made within one month of the date on which the cause of action arises under clause (C) of the proviso to section 138:
2["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.]
(c) No court inferior to that of a Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138].
OBJECTS AND REASONS OF AMENDING ACT OF 2002
Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments, Act, 1881, namely:-
(iii) to provided discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of case under the Act;
1. Ins. by Act 66 of 1988, sec. 4 (w.e.f. 1-4-1989).
2. Ins. by Act 55 of 2002, sec. 9 (w.e.f. 6-2-2003).
DEFENSE ADVOCATE.-firmaction@g
(Expert) 27 April 2012
Ld Prabhakar singh had given this latest position but I have added from when it is effective.
Delay condonation provision for filing the complaint in case of NI 138 is effective from 6th Feb 2003 by virtue of act 55 of 2002.
V R SHROFF
(Expert) 27 April 2012
As I myself recd orders for delay cond, of over 3 months, I was surprised, what is the latest after that.
SO DELAY IS ALLOWED, ON APPLICATION FOR COND. U/S 138 NI . [ NO CHANGE IN LAST 9 YEARS]
Anirudh
(Expert) 27 April 2012
Dear Dr. Vashishta,
As an expert, you will find that so much discussion has already taken place,before you enter to answer the query.
As you can very well see, already relevant provisions of law have been quoted to indicate that one can file a complaint u/s. 138 N.I.Act, along with an application for condonation of delay.
Now, you come and say that NI Act provides complete procedure and no condonation of delay is allowed.
As an Expert, the burden is on you to say on what basis you say so. Further, you also have to answer whether the provisions of Section 142 of the N.I. Act quoted by the earlier Experts are correct or not. If not correct, then how it is not correct.
Therefore, merely saying, what you said does not carry any weight at all. It is as good as no answer.
prabhakar singh
(Expert) 27 April 2012
@ Dr J C Vashista !
I respect you for degrees you hold to write
PHD .
BUT WITH DUE RESPECT I DIS AGREE WITH YOUR BELOW STATEMENT.
"NI Act provides complete procedure and no condonation of delay is allowed,""
To amend your view you should reread my and Mr. JSDN's posts.
Arvind Singh Chauhan
(Expert) 27 April 2012
Respected members here are some citation-
Condonation of delay by court on it’s own motion in respect of NI Act not permissible- If delay deserve to be condoned accused has to be noticed before condoning delay -Proceeding Quashed- Cr.L.J.-2008(NOC)-GUA-947-Gautam Sakia V/S Diganta Sarmah.
Delay not explained proceeding Quashed- Cr.L.J.-2009(NOC)-GUA-700-MAD.
What does it mean I could not go through the whole judgment, if I am wrong please correct me.
One more live example came to my notice. My fellow advocate issued notice, but could not receive AD card. For the proof of receipt he applied to postal department postal department. postal authorities answered after expiry period. My fellow explained the delay that due to late answer by postal authority he could not file suit within limitation period as he was not aware of the actual date of receipt of notice. Court condoned the delay.
Raj Kumar Makkad
(Expert) 27 April 2012
After going through long discussion on the subject, I have been updated and I pay my thanks to all those experts who have actively taken part in this healthy discussion and put the relevant provisions and even the date of amendment.
The provisions prior to amendment was wrongly mentioned by me which is humbly withdrawn here.
