Section 138 NI Act: Can You File a Case After the Limitation Period?

Understanding the Limitation Period in Section 138 Cases

The limitation period for filing a complaint under Section 138 of the Negotiable Instruments Act is strictly regulated and has been the subject of extensive judicial interpretation. Missing the limitation deadline is one of the most common and fatal mistakes in cheque bounce litigation, and understanding the applicable timelines is crucial for both complainants and their legal advisors.

Calculating the Limitation Period

The cause of action under Section 138 arises when the drawer fails to make payment within 15 days of receiving the demand notice. The complaint must be filed within one month (30 days) from the date the cause of action arises. This means the total timeline from cheque dishonour to the last date for filing a complaint is approximately 75 days: 30 days for sending the notice + 15 days waiting period + 30 days for filing the complaint.

It is critical to note that the period of 30 days for filing the complaint is calculated from the expiry of the 15-day notice period, not from the date of sending the notice or the date of cheque dishonour.

Can the Limitation Period Be Extended?

Section 142(b) of the NI Act, read with Section 473 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 (which corresponds to Section 468 of the erstwhile CrPC), allows the court to condone delay in filing if the complainant can show sufficient cause for the delay. However, courts have been strict in applying this provision, and delay condonation is not granted as a matter of course.

The complainant must file an application for condonation of delay along with the complaint, explaining the specific reasons for the delay and demonstrating that the delay was not deliberate or negligent. Medical emergencies, natural disasters, and errors by postal services have been accepted as valid reasons in some cases.

Re-presentation of Cheque

One important strategic option available to complainants is the re-presentation of the dishonoured cheque within its validity period. Each dishonour upon re-presentation creates a fresh cause of action, effectively resetting the limitation clock. The Supreme Court has upheld this principle, confirming that a fresh complaint can be filed based on the subsequent dishonour of the re-presented cheque.

Best Practices to Avoid Limitation Issues

Send the demand notice immediately upon receiving the dishonour memo — do not wait for the full 30-day period. Maintain meticulous records of all dates including dishonour date, notice dispatch date, notice receipt date, and limitation expiry date. Consult an experienced advocate promptly to ensure all procedural timelines are met.