Limitation to file complaint under 138 ni act
Rajeshmohan
(Querist) 18 August 2015
This query is : Resolved
I am the complainant. Two Cheques dt.28/5/2015 received and Deposited in the Bank on 12/7/2015. Dishonoured with Bank Memo dt.13/7/15.. Lawer Notice sent on 15/7/15. Accused acknolwedged the receipt of our Notice on 17/7/2015. My advocate received the reply from the accused's advocate on 27/7/2015 denying the payment & the reply notice received by our advocate on 28/7/2015. I request you to kindly inform what is the last date of filing criminal complaint under Sec.138 NI Act. Please breif me to follow-up with my advocate. As I am 62 years old, can I give a Power of Attorney to third person to represent in the court on my behalf. with regards.
SAINATH DEVALLA
(Expert) 18 August 2015
As the accused has received the noticet on 17/07,U have to file within 45 from the date of receipt of the notice,i.e before 31 Aug.Yes U can give a POA to a third person to represent and file the case.GO THROUGH THIS SC JUDGEMENT:
Power of Attorney holder can also file cheque bounce cases: Supreme Court
PTI Sep 15, 2013, 11.08AM IST
Tags:
Supreme Court|Power of Attorney|complainant|cheque bounce case
(A three-judge bench headed…)
NEW DELHI: The Supreme Court has held that a criminal complaint in a cheque bounce case can be filed and pursued by a person who holds a power of attorney (PoA) on behalf of the complainant.
A three-judge bench headed by Chief Justice P Sathasivam gave the "authoritative" pronouncement on the issue, referred to it by a division bench in view of conflicting judgements of some high courts and the apex court.
"We are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the Negotiable Instruments Act (which deals with cheque bounce cases)," the bench, also comprising justices Ranjana Prakash Desai and Ranjan Gogoi, said.
The bench, in its judgement, said, "...we clarify the position and answer the questions in the following manner:
"Filing of complaint petition under Section 138 of Negotiable Instruments Act through PoA holder is perfectly legal and competent."
It said the PoA holder can depose and verify on oath before the court in order to prove the contents of the complaint.
"However, the PoA holder must have witnessed the transaction as an agent of the payee/holder in due course or possess due knowledge regarding the transactions," it added.
The PoA holder, however, cannot file the cheque bounce case under his own name and such cases can be filed by the complainants through the PoA holders.
Responding to another legal question raised in the reference by a two-judge bench, it said, "the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant
Rajendra K Goyal
(Expert) 19 August 2015
You can file case by entrusting POA to your reliable person.
R.K Nanda
(Expert) 19 August 2015
no more to add.
Rajeshmohan
(Querist) 19 August 2015
Thank you Mr. Sainath and others for giving me good information.
I wish to know whether cheque given for the due payment by post dated cheque is valid or it will take it as security cheque.
In case of security cheque for the due amount of liability is dishonoured, can we file the complaint under sec.138. If any decision in this regard please mention.
SAINATH DEVALLA
(Expert) 20 August 2015
If it is a security cheque U have to prove in the court as there is a difference according to the act between a security cheque and a cheque given for the transaction.Post dated is as much valid as any other cheque.So for further assistance better rely on UR local lawyer who will be the person present in the court.Regarding POA it is UR discretion.
Rajeshmohan
(Querist) 13 May 2016
Sirs,
As per Memorandum of Agreement dt.23.06.2013, a person promised to pay the Principal and Interest on 31.6.2014, but not paid. What is the date of limitation to file a money suit in the honourable court. whether 3 years is from the 23.06.2013 or from the due date mentioned in the MOA i.e 31.6.2014. Kindly advice me to take immediate action.
regards.
Rajeshmohan
(Querist) 11 January 2018
Are u aware that madras high court has set aside the order against the lower court order about the dismissal of the 138 case since the accused being an advocate said that the Cheque given only towards security. The high court given punishment and ordered to pay money. Is this decision is applicable to all.
