Cheque Bounce Trial: Section 145 Affidavit Evidence

The complaint is admitted, the accused has pleaded not guilty, and the magistrate has posted your cheque bounce case for the complainant's evidence. If that is where you are, the next document you file decides how much of your case survives cross-examination. Under Section 145 of the Negotiable Instruments Act, 1881, the complainant's evidence may be led by affidavit, which can save months of adjournments. But a Section 145 cheque bounce affidavit is not a repeat of the complaint. It is sworn evidence, and the accused is entitled to test every sentence of it.

What Section 145 Permits in a Cheque Bounce Trial

Section 145(1) provides that, notwithstanding anything contained in the Code of Criminal Procedure, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding under the Act. Sub-section (2) adds the safeguard: the court may, if it thinks fit, summon and examine any person giving evidence on affidavit as to the facts contained in it.

Two consequences follow in practice. The affidavit replaces the examination-in-chief, not the trial. It goes on record as evidence and is marked as an exhibit. And the phrase just exceptions keeps the ordinary law of evidence alive: an affidavit cannot prove what the deponent does not know, and it cannot carry legal argument.

Section 145 was inserted by the 2002 amendment and applies to complaints under Section 138, where a cheque is dishonoured for insufficiency of funds or because it exceeds the arrangement. Since the offence is tried summarily under Section 143, magistrates are expected to conclude the trial within six months of the complaint. The Supreme Court's guidelines in Indian Bank Association v. Union of India, (2014) 5 SCC 590, push these cases towards day-to-day hearings, and affidavit evidence is what makes that workable. The section is worded around the complainant's evidence; defence evidence in a summons trial is usually led orally. From 1 July 2024 the Bharatiya Nagarik Suraksha Sanhita, 2023 governs procedure, and references to the old Code in Section 145 are now read as references to the Sanhita. The text of the Act is on India Code.

Preparing the Affidavit of Evidence and Annexures

Who should swear it

The deponent should be the payee, or a person who can speak to the transaction from personal knowledge. For a company that is usually a director or authorised officer, and the affidavit must annex the board resolution. For a partnership firm, annex the partnership deed and a letter of authority from the partners. A proprietor swears it himself. Whoever signs should be the person who will face cross-examination; swapping deponents later invites the objection that the affidavit proves nothing.

What the affidavit must establish

• The identity of the deponent and the capacity in which he deposes.

• A legally enforceable debt or liability, with the transaction described by date, invoice number and amount.

• That the cheque was drawn by the accused on an account maintained by him and signed by him.

• Presentation within the cheque's validity, and dishonour, with the bank return memo's date and reason.

• Issue of the statutory demand notice within 30 days of receiving intimation of dishonour, and its service on the accused.

• Failure of the accused to pay within 15 days of receipt of the notice, which creates the cause of action.

• The amount claimed and any interest, with the basis for the calculation stated.

Write in the first person, in sequence, and leave legal submissions out. The affidavit is not the place to argue that the accused's reply notice is false. It is the place to state what you supplied, what you received, what you deposited, and what came back.

Annexures that carry the case

• The original cheque and the bank's return memo, legibly copied.
• Your bank statement or ledger extract showing the deposit and the return.
• The demand notice, postal receipt, acknowledgment card and courier or speed-post tracking record.
• Invoices, delivery challans or ledger extracts connecting the cheque amount to the debt.
• The authority document: board resolution, power of attorney or partnership authorisation.
• A copy of the complaint and the order taking cognizance.

Service is where many complaints weaken. If the notice was refused or unclaimed, place the returned envelope and tracking history on record and rely on the presumption of service that follows from sending it by registered post to the correct address.

Checklist before you swear the affidavit

• The deponent is the payee or a person holding a valid board resolution, power of attorney or partnership authorisation, and that document is annexed.

• The original cheque and a clear copy of the bank return memo are ready for marking.

• The demand notice is on record with postal receipt, acknowledgment card and tracking printout.

• Invoices or ledger extracts tie the exact cheque amount to the debt, not merely to a running account.

• The paragraph on jurisdiction names the bank branch and the court's territorial link.

• The three dates have been checked: presentation within validity, notice within 30 days, complaint within one month of the cause of action.

• The deponent is physically present in court on the date fixed for filing, or the affidavit will not be taken on record.

A Worked Scenario

Meenakshi Textiles, a weaving unit in Coimbatore, supplied fabric to a trader in Tirupur against invoices raised in January and February 2025 totalling Rs 4,85,000. The trader issued a cheque dated 12 March 2025 for Rs 4,85,000 on a Tirupur branch. Meenakshi deposited it on 2 April 2025 and it came back on 3 April 2025 with the remark funds insufficient. A demand notice was issued on 15 April 2025 by registered post and email, and delivered on 19 April 2025. The fifteen-day period expired on 4 May 2025 without payment, and the complaint was filed on 20 May 2025 before the Judicial Magistrate at Coimbatore, within the one-month window.

The accused appeared, pleaded not guilty, and the case was posted for complainant's evidence in February 2026. Meenakshi's partner swore the affidavit, annexing the cheque, return memo, bank statement, notice with postal proof, six invoices, the partnership authorisation and the cognizance order. The accused then moved an application under Section 145(2), arguing that the affidavit did not explain how the Rs 4,85,000 was computed. The magistrate allowed cross-examination confined to the invoices and delivery records. It lasted one afternoon, followed by three questions of re-examination, and the case moved to defence evidence. Had the affidavit merely said the cheque was issued towards amounts due, the presumption under Section 139 would have been far easier to attack.

Cross-Examination After Filing the Affidavit

Once the affidavit is filed and a copy supplied, the accused may apply under Section 145(2) for the deponent to be summoned and examined. The power is discretionary and must be exercised judicially; an application that simply asserts a wish to cross-examine, without identifying the disputed facts, is usually dismissed. A well-drafted application points to specific gaps, for example that the affidavit is silent on how the debt arose or that the signature on the cheque is disputed.

If the application is allowed, the affidavit stands as the examination-in-chief and the accused cross-examines on its contents and the documents annexed. Questions must stay within what has been deposed; roving enquiries into the deponent's entire business are objected to and usually cut short. After cross-examination the complainant may seek leave to re-examine on any point that has become relevant. If the application is refused, the affidavit remains on record as substantive evidence.

This is also the stage at which the complainant can move under Section 143A for interim compensation of up to 20 per cent of the cheque amount, and the accused should weigh the deposit against the defence being run.

When the Court May Require Personal Examination

The discretion under Section 145(2) is exercised most often in five situations:

• The affidavit is vague, unverified, or sworn before an authority who could not administer the oath.
• There is a genuine dispute about who signed the cheque or who is authorised to depose for the payee.
• Original documents are not produced, and the court wants the deponent to account for them.
• The accused is unrepresented and the magistrate considers it necessary to clarify the evidence directly.
• The case has been taken out of the summary track under the proviso to Section 143(1), where the magistrate expects to impose a heavier sentence and prefers oral recording.

Even where the affidavit is accepted without demur, the deponent must remain available. If the deponent does not appear when summoned, the court may decline to read the affidavit, and persistent absence can expose the complaint to dismissal for non-appearance. A payee who has shifted city should file an application for exemption or seek to examine through a representative where the law permits, rather than let the date pass.

Mistakes That Weaken the Affidavit Evidence

Most failures are drafting failures. An affidavit sworn by a manager without a board resolution is worthless the moment it is challenged. An affidavit that argues law, quotes judgments and calls the accused a habitual defaulter invites an objection that it is not evidence at all. A debt described only as business transactions, with no invoice or challan, leaves the Section 139 presumption resting on very little.

Three more errors recur. Filing the affidavit without the bank's return memo, or with an illegible copy, forces the court to summon bank records and loses months. Getting the dates wrong on the notice or the cause of action gives the accused a limitation argument that can end the case. And treating the affidavit as the finish line: the deponent must appear on every date the court requires, because a complainant who disappears risks dismissal and a fresh complaint that may by then be time-barred.

If your trial has reached the evidence stage, do one thing this week: pull the cheque, the return memo, the notice file and the invoices together, and check that a single person can speak to all four from personal knowledge. That person should swear the affidavit. For the statutory text and rules, see the India Code repository of central Acts, reported judgments on the Supreme Court of India site, and the Indian Kanoon database for the text of Section 145 and connected provisions.

This article is for general information only and is not legal advice. Consult a qualified professional for your specific facts.