N.i.act

SRIBHASHYAM MURALIDHAR (Querist) 16 August 2011 This query is : Resolved
Whether issue of notice in delay petition to the Accused, is necessary, 138 Cases?

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Arvind Singh Chauhan (Expert) 16 August 2011
Yes According to latest judgments of higher courts, it is necessary.

Raj Kumar Makkad (Expert) 16 August 2011
What is this delay petition in 138 NI Case and arvind can you please tell me what is the mentioned judgment?

SRIBHASHYAM MURALIDHAR (Querist) 16 August 2011
Mr.Arvind, can you give me judgments, in respect of said case.

As per Sec.142 the Court may take cognizance of offence, if the Complainant satisfies it and it is not mentioned in it, about issue of notice to the Accused.

M/s. Y-not legal services (Expert) 16 August 2011
There is delay in issue notice mean case is not maintainable. With in the period of 6 months you can deposit how many times. By this you can extent the case's life.

M/s. Y-not legal services (Expert) 16 August 2011
Dear arvind sir. Can you please clear us. What you mean..

Arvind Singh Chauhan (Expert) 17 August 2011
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.

Same has been reiterated in following attachment-

DEFENSE ADVOCATE.-firmaction@g (Expert) 17 August 2011
Yes sir very good effort, notice essential by the court to the accused for delay condonation application before it can be granted in NI 138 complaint filing delay.

girish shringi (Expert) 17 August 2011
It creates confusion again.
Can you experts show any other alternative procedure.

DEFENSE ADVOCATE.-firmaction@g (Expert) 17 August 2011
where is the confusion , things are clear and specific.

Arun Kumar Bhagat (Expert) 21 August 2011
Despite sec.142 N.I.Act wherein the power is given to the Magistrate to condone the delay, the High Court observed that alike Sec.5 of the Limitation Act, a proposed accused should be heard before condonation of delay and taking cognizance. A single bench of Calcutta High Court also passed the said judgement.

Advocate. Arunagiri (Expert) 21 August 2011
As per various Supreme court judgements, the accused has no right in participating the pre-cognizance inquiry.

So, condone delay petition is only an inquiry conducted in the pre-cognizance stage.

In my opinion, the court need not send notice to the proposed accused.

Mr.Arun:- can you please post the Calcutta court judgement.

DEFENSE ADVOCATE.-firmaction@g (Expert) 21 August 2011
Condonation of delay is different than cognizance in criminal matters , this provision is specific for NI act only and notice essential to the accused.

Arun Kumar Bhagat (Expert) 27 August 2011
Attached a linkhttp://www.rishabhdara.com/sc/view.php?case=56818.

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