2017 (8) TMI 1014 - HC - Indian Laws

Cause of action arose as per Clause 8 of the Proviso to section 138 of Negotiable Instruments Act - period of limiatation - complaint was filed beyond the period of one month from the date on which the cause of action arose - Held that - In the present case, the issue is not relating to the retrospective application of the amendment. When the complaint was filed, it is true that the complainant can file a petition to condone the delay. Merely because such petition is not filed along with the complaint, it cannot be said that such application can never be filed. The details of the cheque should be given in the notice itself. However, it was also stated that the question as to whether the notice is proper or not, should be decided depending upon the prejudice that is alleged by the accused in the case. In this case, though the notice was given, it refers to the particulars of the cheque to the understanding of the accused, even in the reply notice, no specific prejudice that was actually pleaded by the accused either by stating that he was confused, or by stating that the details of the Cheque are insufficient to enable him to effectively defend the case. In such circumstances, the contention of the Petitioner to quash the proceedings cannot be sustained and thus the Criminal Original Petition fails.

Summary

Issues:
1. Timeliness of filing the complaint under Section 138 of Negotiable Instruments Act.
2. Requirement of a statutory notice under Section 138 of Negotiable Instruments Act.

Issue 1: Timeliness of filing the complaint under Section 138 of Negotiable Instruments Act

The petitioner argued that the complaint filed on 21.12.2015 was beyond the one-month limitation period from the date of the cause of action, as per Section 142 of the Negotiable Instruments Act. The petitioner referred to the proviso under Section 142(1)(b), allowing the court to condone the delay if sufficient cause is shown. The court emphasized that the determination of timeliness is based on the facts of each case. The court rejected the petitioner's contention that the trial court should have dismissed the application solely on the limitation issue. The court highlighted the discretion of the court to consider condoning the delay under Section 142(1)(b) and noted that such discretion is case-specific and cannot be ruled out at an early stage.

Issue 2: Requirement of a statutory notice under Section 138 of Negotiable Instruments Act

The petitioner relied on a judgment where the court dismissed an appeal due to a delay in filing a complaint under Section 138. However, the court distinguished this case from the present one, stating that the previous judgment's circumstances did not align with the current situation. Another judgment cited by the petitioner highlighted the court's ability to condone delays in filing complaints beyond the limitation period. The court discussed a Supreme Court case regarding the retrospective application of an amendment to Section 142(1)(b) of the Act, emphasizing that the amendment is substantive and not applicable to cases filed before its introduction. The court clarified that the petitioner could file a petition to condone the delay even if not submitted with the initial complaint. Furthermore, the court referenced a Kerala High Court judgment emphasizing the importance of including specific details of the dishonored cheque in the statutory notice as a condition precedent for conviction. In the present case, the notice lacked certain essential details related to the cheque, leading the court to uphold the magistrate's decision.

In conclusion, the High Court of Madras dismissed the Criminal Original Petition challenging the proceedings under Section 138 of the Negotiable Instruments Act. The court addressed the timeliness of filing the complaint and the necessity of a statutory notice, emphasizing the case-specific nature of these considerations. The court's analysis highlighted the discretion available to the court in condoning delays, the substantive nature of relevant amendments, and the essential requirements for a valid statutory notice.