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Evidence by Way of Affidavit by Complainant under Section 138 of the Negotiable Instruments Act

In a cheque dishonour prosecution under Section 138 of the Negotiable Instruments Act, 1881, the complainant may tender evidence by affidavit under Section 145. The affidavit sets out the underlying legally enforceable debt or liability, the cheque, its presentation and dishonour, the statutory demand notice, and the accused's failure to pay within the prescribed period.

Section 145(1) expressly permits the complainant's evidence to be given by affidavit, subject to just exceptions, and to be read in evidence at an inquiry, trial or other proceeding. Under Section 145(2), the court may, and on an application by the prosecution or accused shall, summon and examine a person who has given affidavit evidence regarding its contents.

Important: This is an illustrative draft, not a mandatory court-prescribed form. Adapt the facts, exhibits, verification and filing stage to the court's directions. An affidavit does not eliminate the accused's statutory opportunity to seek examination of the witness.

Relevant legal provisions

Section 138: Criminal liability for dishonour of a cheque issued towards a legally enforceable debt or other liability, subject to the statutory conditions and provisos. Punishment may extend to two years' imprisonment, a fine up to twice the cheque amount, or both.
Section 139: Rebuttable presumption that the holder received the cheque towards discharge, in whole or in part, of a debt or other liability.
Section 141: Addresses offences by companies and the liability of persons meeting the statutory requirements. Additional pleadings are needed where the drawer is a company.
Section 142: Governs cognizance, limitation for filing the complaint, and jurisdiction, including the rules in Section 142(2).
Section 143: Provides for summary trial of offences under the chapter, subject to the statutory scheme.
Section 145: Allows evidence of the complainant on affidavit and examination of the affidavit witness as provided in subsection (2).
Section 146: Provides a presumption of cheque dishonour on production of the bank's slip or memo bearing the official mark denoting dishonour, unless disproved.

Official legislation: Negotiable Instruments Act, 1881 (India Code). Check the consolidated text and any applicable court practice directions before filing.

Statutory time limits in brief

The cheque must be presented within its validity period; in ordinary banking practice this is generally three months from its date. A written demand notice must be issued within 30 days of receiving information of dishonour from the bank. The drawer has 15 days from receipt of that notice to pay. If payment is not made, the complaint must ordinarily be filed within one month from the date the cause of action arises, subject to the court's power to condone delay under Section 142(1)(b).

For additional details, see time limit and procedure for filing a Section 138 complaint.

Sample evidence affidavit format

IN THE COURT OF THE LEARNED __________________________ AT __________________

Complaint Case No. __________ of 20____

In the matter of:

Mr./Ms./M/s __________________________
Address: __________________________
Complainant

VERSUS

Mr./Ms./M/s __________________________
Address: __________________________
Accused

EVIDENCE BY WAY OF AFFIDAVIT ON BEHALF OF THE COMPLAINANT

I, __________________________, aged ____ years, son/daughter/spouse of __________________, residing at __________________________, do hereby solemnly affirm and state as follows:

That I am the complainant in the above matter / the duly authorised representative of the complainant, duly acquainted with the facts and records of this case, and competent to depose to the facts stated herein. Where applicable, the authority document is annexed and identified as Exhibit ______.
That the accused had approached the complainant on __________ for a loan / credit facility / supply of goods or services / other transaction, and the complainant advanced or supplied __________________________, creating a legally enforceable liability of Rs. __________. The relevant transaction records are identified as Exhibit ______.
That towards discharge, in whole or in part, of the said liability, the accused issued cheque No. __________ dated __________ for Rs. __________, drawn on __________________ Bank, __________________ Branch, in favour of the complainant. The original cheque is produced and identified as Exhibit CW-1/A, subject to the court's exhibit marking.
That the complainant presented the cheque through __________________ Bank within its validity period. The cheque was returned unpaid under return memo dated __________ with the remark "__________________". The return memo is identified as Exhibit CW-1/B.
That on receiving information of dishonour, the complainant issued a written demand notice dated __________ within the prescribed period, calling upon the accused to pay the cheque amount. A copy of the notice is identified as Exhibit CW-1/C.
That the notice was sent to the accused at __________________ by registered post / speed post / other legally recognised mode on __________. Postal receipt, tracking report, acknowledgement or other service evidence, as available, is identified as Exhibit CW-1/D (collectively, where appropriate). The notice was served / is relied upon as deemed served on __________ on the facts stated and proved in the record.
That the accused failed to pay the cheque amount within 15 days of receipt or legally established service of the statutory notice, thereby giving rise to the cause of action under Section 138 of the Negotiable Instruments Act, 1881.
That the complaint was filed on __________ within the period prescribed under Section 142(1)(b), or with an accompanying application for condonation of delay, if applicable. The relevant chronology and supporting documents are on record.
That this Hon'ble Court has territorial jurisdiction under Section 142(2) of the Act because __________________________ [state the applicable collection-through-account or other statutory jurisdictional basis].
That, to the best of my knowledge, no other complaint concerning the same dishonoured cheque and cause of action is pending before another court, except as specifically disclosed: __________________________.
That the documents relied upon by me are genuine to the best of my knowledge and belief and are tendered subject to proof, admissibility, and exhibit marking as directed by this Hon'ble Court.
That I respectfully request this Hon'ble Court to take this affidavit on record as complainant's evidence under Section 145 of the Act and proceed in accordance with law.

DEPONENT
Signature: __________________

VERIFICATION

Verified at __________________ on this ____ day of __________, 20____, that the statements in paragraphs ____ to ____ are true to my personal knowledge and those in paragraphs ____ to ____ are based on records believed to be true. Nothing material has been knowingly concealed.

DEPONENT
Signature: __________________

Sworn / affirmed before the authorised officer in accordance with applicable rules and court practice.

Documents commonly relied upon

Depending on the facts, the complainant may rely on the original dishonoured cheque, bank return memo, demand notice, postal receipts and delivery records, account statements, invoices or loan records, the complaint, and authorisation documents for a company or other entity. Exhibit labels such as CW-1/A through CW-1/E are illustrative; the court controls final marking and admissibility.

Practical filing considerations

The affidavit should match the complaint, cheque particulars and statutory notice. Avoid unsupported assertions of cheating or fraudulent intent: an offence under Section 138 does not automatically establish a separate cheating offence. Where the complainant is a company or represented through an authorised person, disclose the source of the deponent's knowledge and the applicable authority. Filing, attestation, electronic records and pre-summoning procedures may vary with applicable law and court directions.

This article provides general legal information and an editable sample, not case-specific legal advice. Have the final affidavit checked against current law, facts, court rules and orders by a qualified legal professional.