Your case facts hold good for you. There is no limitation for S.138 NI Act. The time limits for sending notice etc are very specific in the Act. How ever you are advised to discuss the following decisions with your counsel.
In SIL Import, U.S.A. v. Exim Aides Silk Exporters - 1999 (2) KLT 275 (SC), K.T. Thomas & M.B. Shah, JJ. (Crl.A.No.488 of 1999) on 3rd May, 1999 decided that Limitation starts running from the date of completion of offence which is the cause of action. The language used in the above section admits of no doubt that the magistrate is forbidden from taking cognizance of the offence if the complaint was not filed within one month of the date on which the cause of action arose. Completion of the offence is the immediate forerunner of rising of cause of action. In other words cause of action would arise soon after completion of the offence, and the period of limitation for filing the complaint would simultaneously start running.(para.8)
NegotiableInstrumentsAct 1881, Ss.138 & 142 - Cause of action when arises - Requirement of sending notice, mode thereof - Provision does not state about any mode, but the starting date of cause of action is the date of receipt of notice and offence is complete on expiry of 15 days.
The duty cast on the payee on receipt of information regarding the return of the cheque unpaid is mentioned in clause (b) of S.138. Within 15 days he has to make a demand for payment. The mode of making such demand is also prescribed in the clause, that it should be “by giving notice in writing to the drawer of the Cheque”.
Hon'ble Mr.Justice K.A. Abdul Gafoor in Praveen v. Ismayil- 2005 (1) KLT 559 (Crl. A. No.420 of l999) which was d ecided on 29th June, 2004 held that
The period of limitation to file a complaint under S. 138 is mentioned in S. 142. Clause (b) of S. 142 provides that a complaint shall be made within one month of the date on which the cause of action arises under clause (c) of the proviso to S.138. The cause of action arose on the 15th day from the date of receipt of notice or the refusal to accept notice. In this case.
Your counsel may be requested to refer 1997 (2) KLT Guj. SN 76 (C.No.76)
S.J. Shah v. State of Gujarat-M.C.A. No.4088 of 1996 - 30.10.1996