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Section 138 NI Act: Delay In Instituting The Complaint Can Be Condoned If Sufficient Cause Is Shown In The Complaint: SC

Section 138 NI Act: Delay In Instituting The Complaint Can Be Condoned If Sufficient Cause Is Shown In The Complaint: SC

The Supreme Court on May 8, 2019, in the case of Birendra Prasad Sah v. State of Bihar has observed that cognizance of a complaint filed under Section 138 of the Negotiable Instrument Act, 1881, can 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.

A Bench comprising of Justice D.Y. Chandrachud and Justice Hemant Gupta was hearing an appeal filed against the judgment passed by the Patna High Court wherein the Court had quashed a summons issued by Chief Judicial Magistrate in a cheque bounce complaint.

In this case, the complainant issued a legal notice on December 31, 2015, intimating the dishonour of the cheque. As the accused failed to reply, a second legal notice was issued on February 26, 2016, by the complainant. The accused replied to the second notice on March 2, 2016. Thereafter, the complaint was filed on May 11, 2016. The delay in filing complaint was condoned by the CJM taking into consideration the request made by the complainant that during the intervening period he had fallen ill.

However, the Patna High Court under Section 482 of the Code of Criminal Procedure, 1973, quashed the summons on the ground that the complaint under Section 138 was not filed within the statutory period of thirty days prescribed under Section 138 of the Negotiable Instrument Act, 1881.

In appeal, the Bench observed that sufficient cause was shown by the complainant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated December 31, 2015.

The Bench said that "The complaint was instituted on 11 May 2016. Under Section 142(1), a complaint has to be instituted within one month of the date on which the cause of action has arisen under clause (c) of the proviso to Section 138. The proviso however stipulates that cognizance of the 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. Both in paragraphs 7 and 8 of the complaint, the appellant indicated adequate and sufficient reasons for not being able to institute the complaint within the stipulated period. These have been adverted to above. The CJM condoned the delay on the cause which was shown by the appellant for the period commencing from 6 April 2018. However, if paragraphs 7 and 8 of the complaint are read together, it is evident that the appellant had indicated sufficient cause for seeking condonation of the delay in the institution of the complaint. The High Court has merely adverted to the presumption that the first notice would be deemed to have been served if it was dispatched in the ordinary course. Even if that presumption applies, we are of the view that sufficient cause was shown by the appellant for condoning the delay in instituting the complaint taking the basis of the complaint as the issuance of the first legal notice dated 31 December 2015."

Accordingly, the Bench allowed the appeal and set aside the judgment passed by the Patna High Court.

Read the judgment below.

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