Jurisdiction in 138 of N. I. Act

santosh (Querist) 05 March 2010 This query is : Resolved
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R.R. KRISHNAA (Expert) 05 March 2010

B K Raghavendra Rao (Expert) 05 March 2010
Make an application for condonation of delay with proper reason to convince the court. Delay may or may not be condoned.

Parveen Kr. Aggarwal (Expert) 05 March 2010
Section 142 of the Negotiable Instruments Act, 1881 provides as under:

"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:

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."

Section 14 of the Limitation Act, 1963 provides as under:

"14. Exclusion of time of proceeding bonafide in court without jurisdiction: (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it."

As such, the legal position is that a bona fide applicant is entitled for condonation of delay in case he proves his due diligence and sufficient cause. You will have to prove that the application lacks bona fide and the applicant did not act with due diligence.

In P.K. Ramachandran v. State of Kerala AIR 1998 SC 2276, the Supreme Court gave the following note of caution:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."