Condonation of delay.
sudhakar s. yeradkar
(Querist) 07 December 2012
This query is : Resolved
Dear Sir,
I have been filled two cases U/s.138 of NI Act 1881 as per demand notices well in time against one party for dishonoring cheques.
Unfortunately one complaint against same party, I couldn't file within stipulated time and remain pending as on date.
I have filled above two complaints presuming that the party deemed to receive my demand notices because neither AD card nor Packet of Notice received return from Postal authority.
The same issue with the third complaint also. Despite of repeated follow up and written complaints I have not received delivery report from the postal authority for third notice and now it is time bar more than two month.
I seek your expert advise....
1. Can I file condonation of delay.
2. Can I file complaint/case u/s.138 of this delayed third notice against same party because all complaints may come for trail in one court.
3. It there any fear to effect old two complaints because of this third complaint?
Please reply at the earliest.
Rgds
ajay sethi
(Expert) 07 December 2012
if postal acknowledgment has not been received by you and in spite of reminders to postal authorities you did not receive any reply you ought to have filed complaint
In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expression `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
make an application for con donation of delay
ajay sethi
(Expert) 07 December 2012
if postal acknowledgment has not been received by you and in spite of reminders to postal authorities you did not receive any reply you ought to have filed complaint
In terms of the provisions of the General Clauses Act, a notice must be deemed to have been served in the ordinary course subject to the fulfillment of the conditions laid down therein. Section 27 of the General Clauses Act reads as under:
"27. Meaning of service by post.--Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression `serve' or either of the expression `give' or `send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre- paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
make an application for con donation of delay
Guest
(Expert) 07 December 2012
In addition to the advice of Shri Ajay Sethi, my views are as under:
1. About your query "can I file condonation of delay," - you can by stating full facts of the case along with details about your pursuit with the postal department. However, it seems, you have not adopted proper process of enquiry about delivery of registered postal article by paying appropriate postal enquiry fee on registering your complaint with the post office of booking by showing proof of posting (receipt of registered article). Please do now itself. The postal authorities after proper enquiry about delivery date would provide you certificate of delivery and its date(not the AD).
2. Each dishonoured cheque, if dishonoured on separate date, has a separate/different cause of action. So, you mu can file complaint/case u/s.138 for that particular cheque of delayed third notice against party.
3. Your fear seems to be baseless, if that is the type of case mentioned at point (2) above, i.e., if pertains to separate dishonour date of a separate cheque.
Raj Kumar Makkad
(Expert) 08 December 2012
Nothing seems to be added in the wise reply of both the experts.
V R SHROFF
(Expert) 08 December 2012
Delay cond will be allowed.
So file 1238 c Postal cert .
prabhakar singh
(Expert) 08 December 2012
The answer to your question lies in provisions contained in section 142 of the Negotiable Instruments Act. It reads thus:-
[142. Cognizance of offence.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 of the first class shall try any offence punishable under section 138.]
Hence 1.you can file application to condone delay,and YES is the answer to your Q2. and NO is the answer to your Q 3.
