138 NI Act
V. Ramakrishna
(Querist) 01 October 2010
This query is : Resolved
In the notice U/s 138 the complainant states "that you had borrowed moneys from
our client . That in discharge of the said
outstanding you had issued a cheque dated
___for a sum of ...... "
No date when\what was the amount borrowed
and no other proof other than the cheque given by the complainant
Case is the final argument \trial stage .
Can I take the stand that money demanded as per notice is time barred ?
R.Ramachandran
(Expert) 01 October 2010
The fact that you have issued a cheque in discharge of the borrowed amount is sufficient to bring the debt within the limitation period. Just because the notice omits to mention the date when the money was lent, will not in itself give you any relief, nor will it be possible to take the limitation plea especially when you have issued the cheque.
s.subramanian
(Expert) 01 October 2010
I disagree. It is open to you challenge the very statutory notice as defective,illegal and improper. There is a Supreme Court Judgement to support your strand to the effect that a defective notice cannot be the basis of a prosecution. You have a very good case if you concentrate on these lines and present.
R.Ranganathan
(Expert) 01 October 2010
sorry. I feel that Ramachandran is correct. Just because a notice does not mention the amount and date doesn't mean that it is time barred. Limitation starts from the date of issue of cheque and not from the date of notice or the borrowing date. In respect of Mr. Subramanian's statement that a defective notice cannot be the basis of a prosecution,those notices refer to several different transactions between the parties concerned and so they could prove those transactions. Now in this query it is only with regard to mentioning of the amount and date and nothing else.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 October 2010
You may like it or not Mr Subramaniam is right.The penal provisions of NI 138 are legal fiction created by law and hence the same have to be followed to the word for conviction.
Only in civil proceedings the limitation may get extended not under the provisions of NI 138.
Pl go through number of citations of apex court in this matter.
Madan Gopal Dasaur
(Expert) 01 October 2010
Yes ,you can take the plea of limitation.as for liability u/act is for legally recoverable debt.the facts are incomplete it depends on what is evidence on record
Advocate. Arunagiri
(Expert) 02 October 2010
As per the Act there should be a legally enforceable debt. So, you can argue that the claim is time barred. Here we can say that the promissory note is having a time limit, but not the entire amount. The cheque is valid for 6 months from the date of issue (the date which is mentioned in the cheque), not the actual date of delivery.
