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Section 138

(Querist) 19 November 2013 This query is : Resolved 
Dear Sirs,
This is my first query in this forum.I thank the experts taking the pains and time to answer the queries in this forum which helps laymen like us to come out of the fear for anything legal.

a brief of the issue: section 138 case against my company .The summons were served against the company , myself and one other director-2 who has resigned now.Being the sole rep of the company now, i have assumed the responsibilities for everything pertaining to the company .This case ,the cause of action is on 27/10/2008.The director-2 has resigned on 31-3-2013.
My queries as under:
1)The director-2 did not appear when the summon was issued.Now the court has issued NBW against him.How can i avoid this take exemption for the non-appearance of the resigned director-2.

2) This case was first filed on 29/11/2008 under case # xxxx/08 by the complainant.Then subsequently the case has been renewed under ref # bbbb/09.We got the first hearing in sep-2013.The complainant a ltd company did not approach for any discussion during this period.Does this situation come under any limitation act?

Thanks again in advance for the valuable suggestions that you may provide.

Akhilesh Kumar (Expert) 19 November 2013
As per the above facts I would like to advise you herein that
a) The Director no-2 shall not be exempted from the appearance before the court because he was the director at the time of occurrence or cause of action and also he has to face trial or may attempt and request from the high court for the exemption under section 482 of Cr.Pc.
b)Firstly he should appear before the court and take bail thereafter at the time of framing of charge he may be pleaded for the discharge on the ground that he has resigned but chances are very low.
arun (Querist) 19 November 2013
Many thanks for the info Mr.Akhilesh. Can you help me with some clarity on the point number 2..?
T. Kalaiselvan, Advocate (Expert) 19 November 2013
Arun, I shall answer your qs. No.2, in a case u/s 138 of NI act, a notice by the complainant to the accused is mandatory, i.e., he demands to pay the cheque amount by giving a time of 15 days for reconciling/replying/settle the amount etc., which if not utilised, he proceeds to the court seeking relief as per the provisions of law. So the company had given you an opportunity for discussion but you have not utilised. Next aspect is, it is not understood that how will there be another case on the same cause of action once the previous case has been disposed?, you mentioned that a case was filed in 2008 and the same has been renewed in another number in 2009, this is confusing and not known to law or whether you are not giving a proper detail? further, why it took so long i.e., more than 4 years to serve summon on you during 2013 once there was a case filed during 2008, you have not provided proper detail but seeking clarification merely on the basis of basic information (?)
Akhilesh Kumar (Expert) 20 November 2013
Mr. Arun, if case filed earlier registered and nothing happened thereafter court has considered with new reference number there must be reasons, However I am not going to discover how and why.The Answer for question asked in no 2 would be "no" because if court has registered it means must have examined the aspect of limitation or others. You have to face the trial.

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