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2014 (8) TMI 608 - SC - Companies LawDishonour of Cheque - proceedings initiated by the appellant under Section 138 of the Negotiable Instruments Act, 1881 - Bar of limitation - Validity of handwritten note (Notice) sent by the appellant - Held that:- handwritten note dated 27th April, 2012 and found that it was issued within the mandatory period of thirty days of dishonour of cheques and contained (a) the subject amount of ₹ 60,00,000/- given by the appellant as loan to the respondent under promissory notes; (b) the details of Cheque numbers and dates of issue with amounts and particulars of Bank; (c) Returning of Cheques by the banker dishonouring them on the ground of ‘Stop Payment’ by the respondent; (d) a demand for immediate repayment of the amount; and (d) a caution to the respondent that in case of failure on the part of respondent, the appellant would initiate legal proceedings. Thus, in our opinion, the handwritten note dated 27th April, 2012 fulfilled the mandatory requirements under clause (b) of proviso to Section 138 and could be said to be a valid ‘notice’ in the light of this Court’s Judgment in Central Bank of India & Anr. (1999 (10) TMI 718 - Supreme Court of India). It is no doubt true that at the time of filing the complaint, the Magistrate has to take cognizance of the complaint when it is within limitation and in case of delay in filing the complaint, the complaint has to come up with the application seeking condonation of delay. But, the peculiar fact of the present case is that in the complaint, the complainant had only averred that he has sent the legal notice dated 24th May, 2012 but not mentioned about the handwritten note dated 27th April, 2012. Basing on the said averment, the learned Trial Judge was satisfied that the complaint is within the prescribed period of limitation. Hence, in this case, raising the plea of limitation and Court exercising the discretion to condone the delay did not arise at all. In the peculiar facts and circumstances of the case, while keeping in mind the legislative intent and the specific plea of the appellant raised in the grounds for the Special Leave Petition that he should have been allowed to move an application for condonation of delay before the Trial Court as the respondent has not suffered any prejudice by reason of 25 days delay, we strongly feel that the appellant should not have been deprived of the remedy provided by the Legislature. In fact, the remedy so provided was to enable a genuine litigant to pursue his case against a defaulter by overcoming the technical difficulty of limitation. Hence, the High Court has committed an error by not considering the issue of limitation on merits. High Court ought to have remanded the matter to the Trial Court for deciding the issue of limitation - Following decision of Rakesh Kumar Jain Vs. State (Through CBI) (2000 (8) TMI 1097 - SUPREME COURT), MSR LEATHERS Versus S PALANIAPPAN & ANR [2012 (10) TMI 232 - SUPREME COURT] and Subodh S. Salaskar Vs. Jayprakash M. Shah [2008 (8) TMI 795 - SUPREME COURT OF INDIA] - criminal proceedings restored to Trial Court - Decided in favour of appellant.
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