Section 144 — Service of Summons; Section 145 — Affidavit Evidence

If Section 138 is the substantive offence and Section 143 is the engine that makes the trial summary, Sections 144 and 145 are the two procedural levers that allow a magistrate to actually finish a cheque-dishonour case within the six-month outer limit Parliament has prescribed. Section 144 dispenses with the slow-moving CrPC machinery for personal service of summons and authorises despatch by speed post or approved courier, with a deemed-service rule when the cover is refused or returned undelivered. Section 145 dispenses with the requirement that examination-in-chief be recorded orally in court and permits the complainant — and, by judicial extension, the witnesses — to lead their chief on affidavit. Cross-examination, however, is still conducted in the live court on the affidavit itself. Together the two sections compress what would otherwise be months of process and recording into a few hearings, which is the whole point of placing the Negotiable Instruments Act cheque-dishonour proceedings on a fast-track.

Both sections were inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 alongside Sections 143, 146 and 147. They form one continuous procedural code — summary trial, postal summons, affidavit evidence, statutory presumption from the bank memo, compoundability — designed to relieve the magistracy of a docket that the conventional CrPC was visibly failing to clear. Read the four sections as a single procedural cluster, not as four discrete amendments. The Supreme Court in Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83 and the comprehensive directions in Indian Bank Association v. Union of India (2014) 5 SCC 590 read the cluster purposively and laid down the working contours that every magistrate now follows.

Statutory anchor — Sections 144 and 145

The two sections sit back-to-back in Chapter XVII of the NI Act. Section 144 governs how summons is served on the accused and on witnesses; Section 145 governs how the evidence of the complainant is to be received. Both ride on the carve-out at the head of Section 143 — notwithstanding anything contained in the Code of Criminal Procedure, 1973 — so that any conflicting CrPC procedure must yield. The carve-out is now read down to the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provisions for service (Sections 64 to 71 BNSS) and evidence on affidavit (Section 296 BNSS), which are themselves drawn from the older Code, but the NI Act sections continue as the operative law for cheque-dishonour trials.

Section 144 is a short, two-clause provision. Sub-section (1) authorises the magistrate to direct service of summons by speed post or by such courier service as the High Court may approve, addressed to the place where the accused or witness ordinarily resides or carries on business or personally works for gain. Sub-section (2) creates the deemed-service rule: if the addressee refuses to accept the cover, or if the cover is returned with an endorsement to the effect that the addressee refused service, the summons shall be deemed to have been duly served. The mechanism mirrors Section 27 of the General Clauses Act, 1897 — a rebuttable presumption of service from the postal record — but Section 144 places the presumption inside the NI Act itself rather than relying on the General Clauses Act. The Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed (2007) 6 SCC 555 had earlier extended the General Clauses Act presumption to the proviso (b) statutory notice of demand; Section 144 carries the same logic into the post-cognizance stage of the trial.

Section 145 is structurally similar. Sub-section (1) permits the evidence of the complainant to be given by affidavit and the affidavit may be read in evidence in any enquiry, trial or other proceeding under the Code of Criminal Procedure, subject to all just exceptions. Sub-section (2) provides that the court may, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit on the facts contained therein. The first sub-section converts the chief-examination into a written instrument; the second protects the right to cross-examine.

Section 144 — service by speed post and approved courier

Three things have to be unpacked: who decides what counts as an approved courier, what counts as proper addressing, and when the deemed-service rule kicks in.

Approved courier. The provision delegates the approval of courier services to the High Court — a power exercised through circulars on the criminal side. In practice every High Court has issued an empanelment list. The magistrate cannot, on its own, treat a private courier as authorised; the despatch must go through the empanelled list or by speed post operated by the postal department. Where a magistrate uses the routine police-process serving officer instead, that mode remains available under the CrPC residual procedure for cases where postal service has failed.

Address discipline. The cover must go to a place where the addressee ordinarily resides, or carries on business, or personally works for gain. The triadic formula tracks Section 64 of the CrPC and Section 64 BNSS, and the magistrate must be satisfied from the cause-title of the complaint and the bank record that the address is a real one. Where the cheque was returned by the drawer's bank, the address noted on the bank's specimen-signature record is good evidence of the drawer's residential or business address. Sloppy address discipline is the single largest reason that postal summons fail in cheque cases, and the magistrate is entitled to require the complainant to verify the address by affidavit before the cover is despatched.

Deemed service. Section 144(2) treats two distinct postal endorsements as triggering deemed service: a signed acknowledgment from the addressee, and an endorsement that the addressee refused delivery. The endorsement must come from a person authorised by the postal department or the courier service. The magistrate may then declare service complete and proceed under Section 87 CrPC (Section 84 BNSS) to issue process, including non-bailable warrants, against an absconding accused. The presumption is rebuttable — a drawer who shows that the address was wrong, the cover never tendered, or the postal record forged may displace the deemed service. But the burden rests on the drawer; the complainant having posted the cover correctly addressed has discharged its part.

Where the cover comes back with endorsements such as “not claimed”, “house locked” or “addressee out of station”, the older case law on the proviso (b) statutory notice — K. Bhaskaran v. Sankaran Vaidhyan Balan (1999) 7 SCC 510 and C.C. Alavi Haji — supplies the lens. Each of these endorsements has been treated as equivalent to refusal where the complainant can show that the address was correct and the postman performed the routine attempt at delivery. The magistrate is entitled to extend the same pragmatic reading to Section 144(2) read with Section 27 of the General Clauses Act, because both provisions share the same underlying purpose of preventing the drawer from gaming the postal system.

Section 144 read with BNSS Sections 64 to 71

The BNSS modes of service — personal delivery (Section 64), service on a public servant (Section 65), service when the addressee cannot be found (Section 66), substituted service by affixation (Section 67), service on companies and corporations (Section 68), service outside the local limits (Sections 69 and 70) and proof of service (Section 71) — remain available because Section 144 is permissive, not exhaustive. The non-obstante in Section 143 yields the priority of postal service, but does not abolish the residual modes. A magistrate who has tried postal summons and failed may revert to BNSS Section 67 substituted service, and the deeming under Section 144(2) does not preclude that fallback.

Two practical sequencing rules follow. First, the magistrate ordinarily directs Section 144 postal service at the first hearing of the complaint and waits for the postal report before issuing process. Second, where the postal report is ambiguous — not refused but not delivered either — the magistrate should require the complainant to take fresh process by speed post and only then fall back on the residual modes. Skipping the postal step and going straight to a non-bailable warrant has been deprecated by High Courts repeatedly as inconsistent with the summary-trial scheme.

Section 145 — chief-examination on affidavit

The conventional CrPC trial proceeds by examining the complainant and the witnesses on oath in open court, recording the deposition by the magistrate's clerk. For a cheque case where the documentary record — the cheque, the bank's return memo, the demand notice and the postal acknowledgment — does most of the heavy lifting, this oral choreography is wasteful. Section 145 cuts it short. The complainant prepares a written affidavit setting out the chief-examination — the issuance of the cheque, the consideration, the dishonour, the notice, the failure to pay — signs and verifies it, and tenders it before the magistrate. The affidavit, on tender, is read in evidence as the complainant's chief.

Three doctrinal points were settled by the Supreme Court in Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC 83. First, Section 145(1) is mandatory on the complainant if he wants the benefit of fast-track procedure — the affidavit is the default, and oral chief-examination is the exception, not the rule. Second, the same procedure is available to the witnesses called by the complainant, by parity of reasoning and the residual procedure under Section 295 CrPC and Section 296 BNSS for evidence on affidavit. Third, the accused has no parallel right to file his defence evidence on affidavit; he must lead defence evidence in the conventional manner unless the magistrate, in the exercise of inherent power, permits it. The asymmetry is deliberate — Section 145 is a remedial provision for the complainant who is the victim of the offence, not a procedure available equally to the drawer.

Cross-examination on the affidavit

The right to cross-examine is preserved by Section 145(2). Once the affidavit is tendered, the accused (or, on application, the prosecution itself) may pray that the deponent be summoned and examined on the facts contained in the affidavit. The cross-examination then proceeds in open court on the affidavit, not on a fresh oral chief. The affidavit operates as the deposition; the cross is recorded in the conventional manner.

The magistrate has no discretion to refuse a request for cross-examination by the accused. Mandvi Co-operative Bank is express on this. The right is statutory and the only legitimate constraint is the relevance and propriety of the cross-questions. Where the accused has signalled, by his plea or by his earlier conduct, that he disputes the issuance of the cheque, the consideration, or the receipt of the notice, the magistrate must summon the complainant. Where the accused does not seek cross-examination at all, the affidavit stands as the unrebutted chief and may be acted upon by the court for conviction, subject of course to the rebuttable presumptions under Sections 118 and 139 and the case-law on rebuttal — chiefly Rangappa v. Sri Mohan (2010) 11 SCC 441.

Procedural directions in Indian Bank Association v. Union of India

The 2014 directions of the Supreme Court in Indian Bank Association v. Union of India (2014) 5 SCC 590 are the working manual for every magistrate trying a cheque-dishonour case. The five directions, in their compressed form, are these. One, on receipt of the complaint the magistrate shall scrutinise it on the same day and, if the offence is prima facie made out, immediately direct issuance of summons by speed post and by approved courier under Section 144. Two, on the complainant's affidavit (Section 145), the magistrate shall not insist on examination-in-chief in court before the issuance of process, treating Section 200 CrPC verification as discharged by the affidavit. Three, the trial shall ordinarily be summary; if convertible to summons-trial under the proviso to Section 143, the order must record reasons. Four, post-summons, the affidavit evidence may be read at trial subject to the accused's right to cross-examine. Five, the magistrate shall make every endeavour to conclude the trial within six months of the cognizance order, in line with the Section 143 sunset.

The discipline these directions imposed has substantially altered the docket. The complaint is no longer received and put up for verification three months later; cognizance and summons are simultaneous, on the same day. The affidavit replaces the verification statement under Section 200 CrPC. The accused appears, the plea is recorded under Section 263 BNSS (corresponding to Section 251 CrPC), and the affidavit-already-on-record opens for cross. The choreography that once consumed eighteen months can, if disciplined, be done in six.

Recording of the plea and the conduct of the trial

After service is effected and the accused appears, the plea is recorded. In the summary scheme this is governed by Section 263 BNSS (corresponding to Section 251 CrPC) — the magistrate states the substance of the accusation, asks the accused whether he pleads guilty or has any defence to make, and records the plea. A plea of guilty is acted upon at once and a sentencing order made. A plea of not guilty triggers the affidavit-evidence-and-cross stage just described.

The order of evidence is fixed by Section 145 and the Indian Bank Association directions: complainant's affidavit, complainant's documents, complainant's cross-examination if sought, then the statement of the accused under Section 351 BNSS (corresponding to Section 313 CrPC), then defence evidence, then arguments. The summary nature of the trial does not displace the right of the accused to make his statement under Section 351 BNSS — the magistrate must put each adverse circumstance to him and record his answer.

What Section 145 does not change

Three things must be kept clear. First, the affidavit does not displace the documentary requirements of the Section 138 trial. The cheque, the bank's return memo and the postal acknowledgment of the demand notice must still be exhibited. The affidavit refers to them; it does not substitute for them. Second, the affidavit is read “subject to all just exceptions” — that is, the rules of admissibility under the Bharatiya Sakshya Adhiniyam, 2023 continue to apply. Hearsay, opinion and irrelevant matter in the affidavit are excluded as they would be in oral chief. Third, the magistrate's discretion to refuse permission to file an affidavit and instead require oral chief is not abolished — it is restricted to cases where the magistrate is satisfied that the integrity of the trial requires oral examination.

Section 145 is also distinct from the bank-memo presumption under Section 146 NI Act. Section 146 says that the court shall presume the fact of dishonour on production of the bank's slip or memo bearing the official mark; the deponent of the Section 145 affidavit need not separately prove dishonour by oral testimony of a bank officer. The two provisions interlock: the affidavit takes the chief; the bank memo, once produced, supplies the dishonour presumption; the demand notice and postal acknowledgment together close the loop on the proviso (b) requirement; and the magistrate, on the affidavit-and-documents alone, has enough to convict if the accused does not appear to cross-examine and rebut.

Failure of service and the ex parte route

Where postal service under Section 144 has been duly attempted and the deemed-service rule has been triggered, the magistrate may proceed against the accused under the conventional process — bailable warrant under Section 88 CrPC (Section 85 BNSS), then non-bailable warrant, then proclamation under Section 82 CrPC (Section 84 BNSS), and ultimately attachment under Section 83 CrPC. The case can proceed ex parte if the accused fails to appear after process has been served and personal attendance has been ordered. But the magistrate must record clear satisfaction at each stage that earlier steps have failed; the summary-trial scheme is not licence to skip the layered process Parliament has prescribed.

The interplay with Section 482 CrPC (Section 528 BNSS) is also relevant. A drawer aggrieved by the issue of process on a complaint that he says is bad in law — on jurisdictional grounds, on limitation, on lack of consideration, or on legal-heir issues — will frequently approach the High Court for quashing. The pendency of a Section 482 petition does not by itself stay the Section 144 service or the Section 145 affidavit. Stay must be expressly sought and granted; otherwise the trial proceeds.

Distinction from cognate procedural provisions

Section 144 NI Act differs from Section 64 BNSS in three ways: it permits speed post and approved courier as a primary mode rather than a fallback; it places the deeming presumption inside the NI Act itself; and it operates within a non-obstante carve-out tied to the Section 143 summary scheme. Section 145 NI Act differs from Section 296 BNSS — the BNSS provision permits affidavit evidence in inquiries and trials by way of permission; Section 145 makes affidavit chief-examination the default for the complainant in cheque cases. The asymmetry is the entire point: the NI Act sections accelerate what BNSS treats as exceptional.

For exam answers, the safest framing is to lead with Section 145(1) as the source of the affidavit power, cite Mandvi Co-operative Bank as the case settling the contours of the section, and close with the Indian Bank Association directions as the working manual. For Section 144 answers, lead with the speed-post-and-approved-courier mode, the deemed-service rule in sub-section (2), and the General Clauses Act Section 27 analogy.

The exam angle — common traps

Three traps recur. First, the conflation of Section 144 with the proviso (b) demand-notice service — the two are distinct: Section 144 governs the post-cognizance summons, the proviso (b) notice is pre-cognizance. Second, the assumption that the accused can also lead defence evidence on affidavit under Section 145 — he cannot, as Mandvi Co-operative Bank expressly held. Third, the assumption that postal service is equivalent in legal effect to personal service — it is, only when the deeming under Section 144(2) is triggered by a refusal endorsement or signed acknowledgment; an unattempted or unreported cover does not trigger the presumption.

The procedural rest of the cluster — Section 142 jurisdiction, Section 143 summary trial, Section 143A interim compensation — is dealt with in the Sections 139 to 142 chapter, the Section 143 summary-trial chapter, and the Section 143A interim-compensation chapter. The compoundability discipline under Section 147 is taken up in the Section 147 compoundability chapter; the post-conviction compensation regime under Section 357 CrPC and Section 395 BNSS is dealt with in the compensation chapter; and the doctrinal arc of the leading cases is mapped in the landmark-cases chapter.

Frequently asked questions

Is service by speed post under Section 144 mandatory or optional?

It is the default mode, not the exclusive mode. Section 144(1) authorises the magistrate to direct service by speed post or by an approved courier service, and the Indian Bank Association v. Union of India (2014) directions treat postal service as the first step on the day cognizance is taken. The conventional modes under Sections 64 to 71 BNSS remain available as fallback where postal service fails or is reported ambiguously; the magistrate then sequences bailable warrant, non-bailable warrant and proclamation in the usual way.

When is service deemed to have been effected under Section 144(2)?

On either of two events. First, when the postal or courier acknowledgment is signed by the accused or witness. Second, when the cover is returned with an endorsement made by an authorised postal or courier official to the effect that the addressee refused to take delivery. The court may then declare service complete and proceed with process. The presumption is rebuttable by the addressee on showing wrong address, non-tender, or a forged endorsement, but the burden is on him.

Can defence evidence also be led on affidavit under Section 145?

No. The Supreme Court in Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore (2010) held that Section 145 is a remedial provision available to the complainant alone. The accused must lead defence evidence by oral examination unless the magistrate, in the exercise of inherent jurisdiction or under Section 296 BNSS, permits a defence affidavit on a specific application. The asymmetry reflects the legislative purpose of accelerating the complainant's case in summary trials.

Must the magistrate summon the deponent for cross-examination if the accused asks?

Yes. Section 145(2) gives the accused (and, on its own application, the prosecution) the right to summon and examine any person who has given evidence on affidavit. The magistrate has no discretion to refuse the request altogether. The only legitimate scrutiny is over the relevance of the cross-questions. Where the accused does not seek cross-examination, the affidavit stands as the unrebutted chief and the magistrate may act on it for conviction subject to the Section 118 and Section 139 presumptions.

How does Section 144 interact with Section 87 CrPC and the proclamation procedure?

Section 144 only governs the initial mode of service. Once postal service is duly attempted and the accused does not appear, the magistrate moves to the conventional warrant ladder: bailable warrant, non-bailable warrant, and ultimately proclamation under Section 82 CrPC (Section 84 BNSS) and attachment under Section 83 CrPC. Section 144 deemed-service does not collapse this ladder; it only completes the first rung. The court must record satisfaction at each stage before escalating.

Does the affidavit under Section 145 dispense with documentary proof?

No. The affidavit takes the place of oral chief-examination but does not substitute for the documentary record. The cheque, the bank's return memo, the demand notice and the postal acknowledgment must still be exhibited and admitted in evidence. Section 146 NI Act supplies a separate presumption of dishonour on production of the bank's slip; the affidavit refers to these documents but does not replace them. Hearsay and opinion in the affidavit remain inadmissible under the just-exceptions clause.