NI 138 act – plea of case time barred taken after conviction

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This topic contains 1 reply, has 2 voices, and was last updated by Dr. Ashok Dhamija Dr. Ashok Dhamija 1 month ago.

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  • #3673

    Hi

    I had filed complaint for cheque bouncing. Accused was convicted from lower court and also Session court sustained the same order and accused was sent to judicial custody.
    In High court accused counsel has filed application that complaint was time barred.
    Legal Notice Postal date : 28/9/15
    Complaint filed date : 17/11/15
    When checked found that complaint was filled on 50 days.
    In this case accused counsel has not objected this mistake in lower and session court.

    Does accused will get benefit from high court, does this case will be disposed off after two judgement one in lower court and session court.
    Now for complainant is there any citations or judgement to make accused application dismissed in high court as accused counsel didnt objected this in lower court.

    Regards
    Dinesh

  • #3683

    Legally, there is no bar for the high court to reverse the conviction even if such conviction has been sustained in two lower courts. Whether the high court will actually reverse the conviction and acquit the accused, will depend on facts of the case and also how the high court exercises its discretion.

    Firstly, please note that the drawer of the cheque gets 15 days’ time to make payment from the date of receipt of the notice. If he fails to do so within such time, then within one month thereof, the complaint under Section 138 of the N.I. Act can be filed for cheque bounce.

    So, it boils down to (i) one month plus (ii) 15 days plus (iii) time taken from dispatch of notice to its receipt by the drawer of the cheque. All these 3 time periods have to be added, and it would be definitely more than 45 days in general.

    In your case, you have mentioned that it has taken 50 days from the date of dispatch of notice. But, you have not mentioned how many days were taken from dispatch of notice to its receipt by the drawer of the cheque; if it was more than 5 days, then your case is within time limit.

    Please also note that the court has the power to condone the delay in filing of complaint beyond the one month limit. Whether this power was exercised by trial court in your case would be known to you.

    So, depending on all these aspects, the high court may have to decide the case. You’ll have to put forth all relevant arguments in your favour depending on facts of your case.     


    Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles.

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