Under the provisions of Section 138 of Negotiable Instruments Act, following 3 conditions are required to be satisfied:
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) the payee makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
If all the above 3 conditions have been satisfied, then the case under Section 138 is required to be filed within one month of cause of action arising out of condition (c) above. This is what is laid down in Section 142 of the Act.
In your case, it is not clear whether these conditions are satisfied and the time limits mentioned above have been adhered to. In any case, it appears that there is a delay in filing of the case beyond the period of one month allowed under Section 142.
If other conditions [as mentioned in (a) to (c) above] have been satisfied, but there is delay in filing the complaint beyond one month permissible, then you may still try to file the case along with an application for condonation of delay since Proviso to Section 142(1)(b) permits condonation of delay in justifiable circumstances:
“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.”
If the reasons for delay are properly explained and the court is satisfied, it may entertain the complaint even beyond the permissible period of one month.
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. List of his Quora Answers. List of his YouTube Videos.
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