TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1014
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....tioner had borrowed a sum of Rs. 4 lakhs from the respondent on 7.8.2015 and that a post-dated cheque, dated 7.8.2015 was handed-over by the Petitioner to the complainant for the said amount of Rs. 4 lakhs. The further case of the Petitioner is that the complainant issued a notice stating that when the cheque was presented for collection as directed by the Petitioner, it was returned with an endorsement as ''no funds available''. It was admitted by the respondent that the information was given to him on 8.9.2015 and the respondent also issued a registered legal notice to the Petitioner on 23.09.2015. The Petitioner states that the cause of action arose on the date of issue of notice. Hence the learned counsel for the Petitio....
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....ourt that he had sufficient cause for not making the complaint within such period. The question whether the complaint has been preferred within the period of limitation is a matter to be decided on the facts of each case. Merely because the respondent has filed a petition to condone the delay, it cannot be concluded that such option would never be exercised by the complainant and this Court also is not in a position to appreciate the contention of the Petitioner that, the trial Court ought to have dismissed the application on the question of limitation. The power of Court to exercise its discretion in terms of proviso to Section 142(1)(b) of Negotiable Instruments Act, is a matter to be decided depending upon facts and this Court cannot rul....
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....ion was filed belatedly at the time of pronouncement of judgement. Hence the judgement relied upon by the learned counsel for the Petitioner has no application to the facts of the present case, especially when this Court in the judgement has dismissed the appeal filed by the complainant as against the order dismissing the Calendar Case. 6.The learned counsel for the Petitioner further relied upon another judgement of this Court in Crl.O.P.No.12167 of 2005, dated 20.7.2009(S.Janaki .vs. R.Thiagarajan), wherein, this Court has held as follows: ''9.In view of the law laid down by the Honourable Supreme Court, the proviso to Clause(b) of Section 142 of the Negotiable Instruments Act has been inserted, conferring jurisdiction upon the ....
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....e in such a case, no petition to condone the delay is maintainable. In the present case, the issue is not relating to the retrospective application of the amendment. When the complaint was filed, it is true that the complainant can file a petition to condone the delay. Merely because such petition is not filed along with the complaint, it cannot be said that such application can never be filed. The next issue that was raised by the learned counsel for the Petitioner is relying upon the judgement of the Kerala High Court in the case of Themuvatupuzha .vs. State, dated 20.12.2002, wherein, the Kerala High Court has held as follows: ''15.So the issuance of a statutory notice in terms of Section 138 of Negotiable Instruments Act, by w....
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....truments Act is a condition precedent, for entering into a conviction against the drawer of the cheque and such notice contemplated by the statute is not an empty formality. However, in this case, the number given in the statutory notice and in the complaint, is not with respect to the cheque, but is only the account number. Hence in the present case, no such statutory notice in terms of Section 138(b) is issued and therefore, according to me, the learned Magistrate is fully justified in his finding.'' As per the judgement of the Kerala High Court, the requirement of Section 138 of Negotiable Instruments Act is reiterated. The requirement of notice was a point that was considered. It is stated in the said judgement that the detail....