M/S Oswal Denims vs. M/S Avion Fabrics And Another

CRM-M-262 IN TH 131 M/s Oswa M/s Avion CORAM:

Present:-

MANISHA

Versus n Fabrics and another HON'BLE MRS. JUSTICE M Mr. Aalok Jagga, Advocate for the petitioner. A BATRA, J. (Oral) This petition has been filed by Nagarik Suraksha Sanhita, 2023 dated 24.04.2025 (Annexure P- Magistrate First Class, Ludh 520/2019, titled as Oswal Denim under Section 138 of the N ‘the Act’), whereby an applicatio hich is pari materia with Section Briefly stated, the aforement oner against the respondents un s that respondent No. 2, being p d a cheque in favour of the p le liability of respondent No. ed and despite issuance of no ompelling him to file the afor

E STATES OF PUNJAB AND HANDIGARH CRM-M-26267-2025 (O& Date of decision: 15.05.2

...Petition s

...Responde MANISHA BATRA y the petitioner under Section 52 3 (for short ‘BNSS’) for quashin 14), passed by the Court of lear proprietor of respondent No. 1/f petitioner to discharge the leg 1/firm. The said cheque had b otice, no payment had been m rementioned complaint. During -1-

&M) 2025 er ents 28 of ng of rned No. y the 1881 48 of ssed. d by n the firm, gally been made, the MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document

CRM-M-262 pendency 348 of BN as DW-1 w dismissed part of whi 267-2025 (O&M) of the complaint, the petitioner m NSS seeking recall of responden while producing evidence in def by the learned trial Court by pa ich, reads as under : “It is a settled l Cr.P.C. is discretionary with caution and in present case, question returns, balance sheets were very much we complainant and he ou DW1 appeared in t sufficient opportunities be said that said que accused(DW1) due t Supreme Court of Indi application under Secti merely in order to fill once the final argumen counsel. So, it seems th filed at fag end the of th

moved an application under Sec nt No. 2/accused, who had appe fence. The said application has b assing the impugned order, opera law that power under Section y in nature and must be exerc exceptional circumstances. In n with regard to invoices, G and payment made by the accu ell within the knowledge of ught to have asked the same w he witness box. Despite giv s to cross-examine DW1, it can estions were left to be put to to oversight. Moreover, Hon ia has held in plethora of cases ion 311 Cr.P.C. can not be allo l up lacuna or gaps in parties nts have been advanced by defe hat the present application has b he trial. Supreme Court of India in case ti us State of Assam, Petition(s) eal (Crl.) No(s).3910/2024, Dat has held that “ Court can summ witness only if it is satisfied that o fill lacuna and non-summon rejudice to the accused. The C ubstantiated grounds for recall n 311 Cr.P.C. should not be use -2-

ction ared been ative 311 cised the GST used the when ving n not the n’ble that wed case ence been itled for te of mon, t the ning Court and ed as MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document

CRM-M-262

tics or to fill gaps in earlier cr on’ble Supreme Court of India Singh Versus State of Harya of 2013 (@ SLP (CRL.) No.240 n 04.07.2013, has held that Sec be used to fill lacuna in prosecu rcised to prevent failure of jus s not rendered inconclusive the citations of Hon’ble Supr ell as facts and circumstances sent application has been moved r the applicant at fag end of the ents have already been advanced Moreover, re-cross-examination ve prejudice to the accused. Thu lication has been moved in orde view of aforementioned reas by applicant/complainant sta herein are for the sole purpose ent application and shall not af ounsel for the petitioner that e eyes of law as while passing well settled proposition of law to amine the witness at any stage of essential for just decision of the certain material questions could -3-

ross- a in ana, 00 of ction ution tice, or reme s as d by trial d by n of us, it er to sons ands e of ffect the g the o the f the case d not MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document

CRM-M-262 be put to serious pre non-exami as a lacuna submission arguments cited as R charge, 19 4. length and 5. section 348 not be allo defence or Kumar Ch Hon'ble Su Cr.P.C. sh strong and circumspe Court and under the provisions of the Co conferred u 267-2025 (O&M) him. Due to non-examination ejudice is being caused to the ination of DW-1 on those points of DW-1 on those very point petitioner. It is further argued s cannot be taken into considera p by the petitioner. With these br eserves to be allowed. To fortify ioner has relied upon the autho cotics Cell through its Office el for the petitioner at consider erial placed on record carefully. n of law that an application un ia with Section 482 of Cr.P.C.) m he case of the prosecution, or of to the opposite party. In Swa f Investigation, 2019 (2) Scale 6 power conferred under Section ly to meet the ends of justice and be exercised with great caution P.C. confers vast discretion upon sible terms, the discretionary po only for the ends of justice. ised consistently with the provis minal law. The discretionary po o be exercised judicially for reas -4-

ts, a that ation road y his ority er-in rable nder must f the apan 654, 311 d for and n the ower The sions ower sons MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document

CRM-M-262 stated by context can well as to t Walia : 1 Devinder K 7. facts of th Tushar Kh evidence. examinatio the petitio detailed cr accused h application recalling o invoices in Input Tax respondent petitioner perusal of reasonable made out, been given fact that 267-2025 (O&M) Kumar : 1999(1) Civil Court Ca On applying the above discu he present case, it has been not hanna had appeared as his own He had been examined-in-c on was deferred on that date on oner and this witness was then ross-examination has been cond has been closed on 14.02.202 n under Section 348 of BNSS of DW-1 i.e. accused by submi n question with GST Departm Credit qua those invoices in t No.2/accused claimed that th were false and, therefore, recall f the record, I am, however, o e ground for allowing the prayer in view of the fact that due oppo n to the petitioner and he had be certain invoices, GST returns

or capriciously. Reference in State of U. P. : (2011) 8 SCC 13 7(1)(P&H) and Joginder Singh ases 202(P&H). ussed position of law to the pecu ticed that respondent No. 2/accu n witness while producing defe chief on 25.11.2024. His cr n the request of learned counsel cross-examined on 15.01.2025 ducted. The defence evidence of 25. The petitioner filed afore on 07.04.2025 making prayer itting that he had paid GST on ent and the respondents had ta their accounts. It is submitted he invoices so relied upon by ling of DW-1 is must. On a car of the considered opinion that r as made by the petitioner has b ortunity to cross-examine DW-1 een so cross-examined in detail. and balance sheets etc. were -5- ross- l for 5. A f the esaid r for n the aken that the reful t no been had The e in MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document

CRM-M-262 existence, cross-exam when the No doubt, examine a however, examinatio the case o cross-exam petitioner h DW-1 and etc. would the learned the petitio have been the present

Whet Whet

267-2025 (O&M) was very much within the know mining the DW-1. The applicatio final arguments had already be Courts have ample power to re witness if the same is considere at the same time, it has al on/cross-examination is not with f that particular party. It is not mine DW-1 had been given to has also failed to explain as to h d putting questions with regard to d help the Court in arriving at a p d trial Court has committed no e ner, especially keeping in view advanced by the opposite party t petition, the same is dismissed. 5

ther speaking/reasoned ther reportable

wledge of the petitioner at the tim on had been filed by him at the s en advanced by the opposite pa ecall or re-examine or further cr ed to be necessary for just decis lso to be seen that the said h an intention to fill up the lacun the position that no opportunit o the petitioner in this case. how the further cross-examinatio o existence of invoices, GST retu proper decision of the case. As s rror in declining the prayer mad w the fact that even final argum y. Accordingly, finding no mer .

(MANISHA BATRA)

JUDGE

Yes/No Yes/No -6-

me of stage arty. ross- sion, re- na in ty to The on of urns uch, e by ments it in MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document