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TMI Blog2023 (8) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act. The Hon'ble Supreme Court while dealing with similar issue in the case of Pawan Kumar Ralli [ 2014 (8) TMI 608 - SUPREME COURT] has held that In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation. In view of the judgment rendered by Hon'ble Supreme Court in the case of Pawan Kumar Ralli, there are no reason to interfere with the order passed by the learned revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is a special Act and the delay cannot be condoned by the courts while exercising the revisional power. He has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Econ Antri Limited Vs. Rom Industries Limited and another, reported in (2014) 11 SCC 769 and referred to para 6, 9, 14 and 20 of the said judgment which read as under: 6. Section 142 of the N.I. Act reads 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. (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Silk Exporters, (1999) 4 SCC 567]. The counsel further submitted that the provisions of the Limitation Act are not applicable to the NI Act as held by this Court in Subodh S. Salaskar [Suboth S. Salaskar v. Jayprakash M. Shah, (2008) 13 SCC 689]. The counsel pointed out that by Amending Act 55 of 2002, a proviso was added to Section 142(b) of the NI Act. It bestows discretion upon the court to accept a complaint after the period of 30 days and to condone the delay. This amendment signifies that prior to this amendment the courts had no discretion to condone the delay or exclude time by resorting to Section 5 of the Limitation Act. The Statement of Objects and Reasons of the Amending Act 55 of 2002 confirms the legal position that the NI Act being a special statute, the Limitation Act is not applicable to it. The counsel submitted that the judgment of this Court on the Arbitration Act is not applicable to this case because Section 43 of the Arbitration Act specifically makes the Limitation Act applicable to arbitrations. The counsel submitted that in view of the above, it is evident that Saketh does not lay down the correct law. It is SIL Import USA which correctly analyses the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and perused the documents. 7. It is not in dispute that the complaint was filed by the complainant under Section 138 of the Negotiable Instruments Act and on the ground of delay alone the aforesaid was rejected. An application was filed by the complainant under Section 142 of the Negotiable Instruments Act along with the complaint case, in which he has stated that the postal receipt could not be received though the notice was issued on 28.02.2018 and later on he enquired from the postal department and obtained the postal receipt which is a necessary document to establish the fact that mandatory notice was issued to the accused. 8. The judgment relied on by the petitioner does not touch the issue involved in the present case and the same is evident from para 42 of the judgment passed by the Hon'ble Supreme Court in the matter of Econ Antri Limited (supra) which is as follows:- 42. Having considered the question of law involved in this case in proper perspective, in the light of relevant judgments, we are of the opinion that Saketh [Saketh India Ltd. v. India Securities Ltd., (1999) 3 SCC 1] lays down the correct proposition of law. We hold that for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 27-4-2012 (Annexure P-4) and found that it was issued within the mandatory period of thirty days of dishonour of cheques and contained (a) the subject amount of Rs.60,00,000/- given by the appellant as loan to the respondent under promissory notes; (b) the details of cheque numbers and dates of issue with amounts and particulars of bank; (c) returning of cheques by the banker dishonouring them on the ground of stop payment by the respondent; (d) a demand for immediate repayment of the amount; and (e) a caution to the respondent that in case of failure on the part of respondent, the appellant would initiate legal proceedings. Thus, in our opinion, the handwritten note dated 27-4-2012 fulfilled the mandatory requirements under clause (b) of proviso to Section 138 and could be said to be a valid notice in the light of this Court s Judgment in Central Bank of India v. Saxons Farms [(1999) 8 SCC 221]. Moreover, this document (Annexure P-4) stands admitted by the appellant in his crossexamination also. Therefore, in our opinion, the High Court has committed no error in considering the handwritten note dated 27-4- 2012 as notice under Section 138 of the Act. 19. However, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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