Section 144: Mode of service of summons

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) and
for the purposes of this Chapter, a Magistrate issuing a summons to an accused or a witness may
direct a copy of summons to be served at the place where such accused or witness ordinarily
resides or carries on business or personally works for gain, by speed post or by such courier
services as are approved by a Court of Session.
(2) Where an acknowledgment purporting to be signed by the accused or the witness or an
endorsement purported to be made by any person authorised by the postal department or the
courier services that the accused or the witness refused to take delivery of summons has been
received, the Court issuing the summons may declare that the summons has been duly served.

Section 144 deals with the mode of service of summons by the Magistrate to the accused or
witness, as the case may be. The copy of summons shall be served at the place where such
accused or witness ordinarily resides or carries on business or personally works for gain and it
shall be sent by speed post or by such courier services as are approved by a Court of Session.
Subsequently, where an acknowledgment purporting to be signed by the accused or the witness
or an endorsement purported to be made by any person authorised by the postal department or
the courier services that the accused or the witness refused to take delivery of summons has been
received, the Court issuing the summons may declare that the summons has been duly served.

Section 145: Evidence on affidavit

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 said Code. (2)
The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused,
summon and examine any person giving evidence on affidavit as to the facts contained therein.

Section 145 of the Negotiable Instruments Act, 1881 is an exception to the normal rule as
envisaged in Section 200 of the Code of Criminal Procedure, 1973 that the complainant would be
required to give his evidence by appearing in person and by making a statement on oath before
the Court. Thus, Section 145 of the Act, provides for a departure in the manner of tendering
evidence at the trial, and permits evidence by way of affidavit.

Case Law on Section 145

In the case of Mandvi Co-operative Bank Ltd. V. Nimesh B Thakore (2010 SC), the Court held
that the expression “subject to all just exceptions” used in Section 145 means that the evidence
on affidavit must be admissible and it must not include inadmissible materials such as facts not
relevant to issue or any hearsay statements.

Section 146: Bank’s slip prima facie evidence of certain facts

The Court shall, in respect of every proceeding under this Chapter, on production of Bank's slip
or memo having thereon the official mark denoting that the cheque has been dishonoured,
presume the fact of dishonour of such cheque, unless and until such fact is disproved.
Section 146 states that on production of Bank's slip or memo having thereon the official mark
denoting that the cheque has been dishonoured, the Court shall presume the fact of dishonour of
such cheque, unless and until such fact is disproved. It is a rebuttable presumption of law.
In the case of Rajinder Singh Verma v. Haji B K Hanchnmani (2019 HP HC), the Himachal
Pradesh High Court has held that unless the bank slip bears official mark or seal, no presumption
can be raised about presentation and dishonor of the cheque for maintaining a case under Section
138 NI Act.

Section 147: Offences to be compoundable

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every
offence punishable under this Act shall be compoundable. Section 147 states that every offence
punishable under the 1881 Act (26 of 1881) shall be compoundable.

Damodar S Prabhu v. Sayed Babalal 2010

Section 147 of NIA is an enabling provision which provides for compounding of offences
prescribed under the same Act there by , serving as an exception to the general rule incorporated
in section 320 (9) of CrPC. Since section 147 was inserted by way of an amendment to a special
law, the same will override the effect of section 320 (9) of CrPC especially keeping in mind that
section 147 NIA carries a non obstante clause.

Guidelines issued.
1. Summons be suitably modified making it clear to the accused that he would make an
application for compounding to the offense at the first or second having of the case and
that if such an application is made compounding may be allowed by the court without
imposing any cost on the accused.

2. If the accused does not make an application for compounding as aforementioned, then if an
application for compounding is made before the magistrate at a subsequent stage. Compounding
can be allowed subject to the condition that accused will be required to pay 10% of the cheque
amount to be deposited as a condition of compounding with the legal service authority

3. Application made before Sessions Court or High Court in appeal or revision accused will be
required to pay 15% of the cheque amount to be deposited as a condition of compounding with
the legal service authority

4. Before Supreme Court accused will be required to pay 20% of the cheque amount to be
deposited as a condition of compounding with the legal service authority.

Important Case

In Re Expeditious Trial Of Cases Under Section 138 of N.I Act

Facts
 A Special Leave Petition was filed which pertains to dishonour of two cheques on
27.01.2005 for an amount of Rs.1,70,000/-.
  The dispute has remained pending for the past 16 years. Concerned with the large
number of cases filed under Section 138 of the Negotiable Instruments Act, 1881
pending at various levels
 A Division Bench of the Court consisting of the Chief Justice of India and L. Nageswara
Rao, J. decided to examine the reasons for the delay in disposal of these cases.
 The Registry was directed to register a Suo Motu Writ Petition (Criminal) captioned as
“Expeditious Trial of Cases under Section 138 of N.I. Act 1881”.
 Mr. Sidharth Luthra, learned Senior Counsel was appointed as Amicus Curiae and Mr. K.
Parameshwar, learned Counsel was requested to assist him.
 Notices were issued to the Union of India, Registrar Generals of the High Courts,
Director Generals of Police of the States and Union Territories, Member Secretary of the
National Legal Services Authority, Reserve Bank of India and Indian Banks’ Association,
Mumbai as the representative of banking institutions.

Held
 It is clear that the conversion by the Trial Courts of complaints under Section 138 from
summary trial to summons trial is being done mechanically without reasons being
recorded. The result of such conversion of complaints under Section 138 from summary
trial to summons trial has been contributing to the delay in disposal of the cases.
 Further, the second proviso to Section 143 mandates that the Magistrate has to record an
order spelling out the reasons for such conversion. The object of Section 143 of the Act is
quick disposal of the complaints under Section 138 by following the procedure prescribed
for summary trial under the Code, to the extent possible.
 The discretion conferred on the Magistrate by the second proviso to Section 143 is to be
exercised with due care and caution, after recording reasons for converting the trial of the
complaint from summary trial to summons trial. Otherwise, the purpose for which
Section 143 of the Act has been introduced would be defeated.
 The High Courts may issue practice directions to the Magistrates to record reasons
before converting trial of complaints under Section 138 from summary trial to summons
trial in exercise of power under the second proviso to Section 143 of the Act
 The bench issued the following directions to expedite the trial of cheque dishonour cases
under Section 138 NI Act:
 The High Courts are requested to issue practice directions to the Magistrates to record
reasons before converting trial of complaints under Section 138 of the Act from
summary trial to summons trial.
 Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to
arrive at sufficient grounds to proceed against the accused, when such accused resides
beyond the territorial jurisdiction of the court.
 For the conduct of inquiry under Section 202 of the Code,evidence of witnesses on
behalf of the complainant shall be permitted to be taken on affidavit.
 In suitable cases, the Magistrate can restrict the inquiry to examination of documents
without insisting for examination of witnesses
 Suitable amendments be made to the Act for provision of one trial against a person
for multiple offences under Section 138 of the Act committed within a period of 12
months, notwithstanding the restriction in Section 219 of the Code.
 The High Courts are requested to issue practice directions to the Trial Courts to treat
service of summons in one complaint under Section 138 forming part of a
transaction,as deemed service in respect of all the complaints filed before the same
court relating to dishonour of cheques issued as part of the said transaction.
 There is no inherent power of Trial Courts to review or recall the issue of summons.
This does not affect the power of the Trial Court under Section 322 of the Code to
revisit the order of issue of process in case it is brought to the court's notice that it
lacks jurisdiction to try the complaint.
 Section 258 of the Code is not applicable to complaints under Section 138 of the Act.
To conclusively deal with this aspect, amendment to the Act empowering the Trial
Courts to reconsider/recall summons in respect of complaints under Section 138 shall
be considered by the Committee constituted the Court on 10.03.2021.