M/S Harihar Polymers And Anr vs. M/S Sabsons Agencies PVT. LTD.

Present petition has been filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) seeking setting aside of the order dated 30.11.2024 (Annexure P-1) passed by learned Judicial Magistrate 1st Class, Chandigarh, in complaint bearing No.NACT/16751/2018, titled as ‘Sabsons Agencies Pvt. Ltd. Vs. M/s Harihar Polymers and another’, vide which the application filed by the petitioners for re-examination of DW1 and VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

In brief, facts of the case are that the respondent-complainant is sole distributor of Gujarat Narmada Fertilizers and Chemicals Limited (for short ‘GNFC’) and petitioner No.1 is a proprietorship firm, which was engaged in chemical blending and was using the chemicals as raw material supplied by the respondent-complainant and petitioner No.2 is its proprietor. Petitioner No.1 and the respondent-complainant were in business dealings since financial year 2016-2017 till 2017-2018. The respondent-complainant took undated blank cheques from petitioner No.1 as security towards credit sales. When VAT system of taxation was in force, there was no dispute with regard to placing of orders, raising of invoices etc. However, in July, 2017, after implementation of GST, the respondent-complainant raised 11 invoices, mentioned in the complaint (supra), against which due to non-making of actual supplies, no GR/LR was issued/obtained from petitioner No.1, therefore, no payment liability was accrued. It is pertinent to note that e-way billing system was implemented w.e.f. 01.04.2018. During that period, the respondent- complainant, by taking undue advantage of process flaws, manipulated the GR/LR and transporter related details on invoices, which actually belong to dealings/deliveries between GNFC and the respondent-complainant. The respondent-complainant, on the basis of false and fabricated invoices, presented the cheques given as security of legally recoverable outstanding, for VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

Learned counsel for the petitioners, inter alia, contends that the complaint (supra) was filed on the allegations that the petitioners had not paid its dues, against which the cheques issued by them, got dishonoured. It is specific defence of the petitioners that the cheques in question were given as security against delivery of the stocks. The respondent-complainant created 11 false and fabricated Tax Invoices to show the delivery of stocks, however, the VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

Learned counsel for the petitioners vigorously put forth his arguments that 11 Tax Invoices (Annexure P-2) are false and fabricated to show the delivery of stocks to the petitioners. However, Tax Invoices (Annexure P-5), which were proved on record as Ex.D2/DW1 clearly indicate that manufacturer GNFC has issued the said invoices in the name of the respondent-complainant and it has made the payment with regard to stocks mentioned in the same, which were delivered through Goods Receipt No.29662, however, the respondent-complainant fabricated the invoices by showing the delivery through same Goods Receipt No.29662. Learned counsel for the petitioners relies upon a judgment of the Hon’ble Apex Court in Rammi @ Rameshwar Vs. State of M.P., (1999) 8 Supreme Court Cases 649 and submits that in view of the depositions of DW1 and DW3, their re-examination VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

Per contra, learned counsel for the respondent contends that the petitioners filed an application seeking re-examination of DW1 & DW3 only with an intention to delay the conclusion of trial. The proceedings under the provisions of Negotiable Instruments Act, 1881 (for short ‘NI Act’) are summary in nature and no ambiguity or new fact has come on record, which VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

Having heard learned counsel for the parties and after perusing the record of the case with their able assitance, it transpires that the application for re-examination of DW1 & DW3 has been filed, however, it has not been highlighted how re-examination of these witnesses is essential for just adjudiction of the case. Further, what kind of ambiguity has arisen during cross-examination of these witnesses, has not been explained. The depositions of these witnesses are available on record as Annexures P-3 & P-6 and Chief Manager (Legal), GNFC appeared as DW1 and for just adjudication of the dispute, his cross-examination is relevant, which reads as under: - “XXXX by Advocate Sh. Vikas Jain, counsel for complainant. Q. Is it correct that in case of direct sale by any dealer of GNFC, there is no mandate of GNFC to disclose the name of the actual purchaser party at the time of purchase of chemical from GNFC by the dealier? Ans. Yes. If there is a direct purchase by the dealier in his own name and the shipping party is the same, GNFC mentioned in the invoice only the dealer name at both places in the invoice i.e. “name of consignee” and “on account of”. Q. Is it correct that where the consignee and on account of party is same in the invoice i.e. dealer of GNFC, the dealer is having VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

Further, it is admitted fact that GNFC is the manufacturer and Tax Invoices (Annexure P-5) issued in the name of the respondent-complainant i.e. M/s Sabsons Agencies Pvt. Ltd., who made the payment with regard to stocks. Perusal of the aforementioned cross-examination clearly indicates that there is no ambiguity. As far as having the same goods receipt number in the Tax Invoices (Annexure P-2) issued by the respondent-complainant to the petitioners and the Tax Invoices (Annexure P-5) issued by GNFC to the respondent-complainant are concerned, it indicates the transit sale. Further, perusal of these Tax Invoices indicates that quantity of the stocks is the same and in the Tax Invoices (Annexure P-2), it is clearly mentioned that the petitioners are the buyers other than the consignee. It is admitted fact that Input VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

The legislative mandate contained in Section 145 of NI Act provides that learned trial Court may summon the complainant for his cross- examination to the facts contained in his examination-in-chief. The purpose and intent of NI Act is for fast and expeditious trial. The degree of satisfaction is required for the accused to rebut the presumption is preponderance of probability. Further, NI Act is a special legislation and these provisions will dislodge the applicability of general statute. The provisions of Section 311 of Cr.P.C. (now Section 348 of BNSS) have to be read with the provisions of Section 143(3) of NI Act, which provides that the trial under NI Act should be conducted as expeditiously as possible and that would conclude within six months from the date of filing of complaint. The complaint in the present case was filed in the year 2018 and the witnesses have already deposed on the basis of record summoned by the petitioners, the Courts are required to adopt pragmatic and practical approach while passing an order recalling or re- examination of the witnesses until and unless the ambiguity is pointed out and re-examination is essential for the just adjudication of the case. Such power cannot be exercised at the ipse dixit of the accused in a casual manner. The power to recall or re-examine any witness, already examined, is to be exercised sparingly after forming an opinion that such power is necessary for just and VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

A two Judges Bench of the Hon’ble Supreme Court in VN Patil Vs. K. Niranjan, passed in Criminal Appeal No. 267 of 2021, decided on 04.03.2021, examined the scope of the power under Section 311 of Cr.P.C. (now Section 348 of BNSS) and following was observed:- “Object underlying Section 311 Cr.P.C is that there may not be failure of justice on account of mistake of either party in bringing valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The significant expression that occurs is ‘at any stage of enquiry or trial or other proceeding under this Code’. It is however, to be borne in mind that the discretionary power conferred under Section 311 CrPC has to be exercised judiciously, as it is always said wider the power, greater is the necessity of caution while exercise of judicious discretion.”

The Hon’ble Supreme Court in Mohanlal Shamji Soni Vs. Union of India and another, AIR 1991 SC 1346 has held that where the object of the accused in recalling witnesses already examined in the case is to prolong the trial of the case, the Court would not allow such application. Moreover, the power under Section 311 of Cr.P.C. (now Section 348 of BNSS) is dictated by exigency of the situation based on the principle of fairplay and goodwill and existence of the evidence being essential for the just adjudication of the case is VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

No other point was raised or argued. The judgments cited by learned counsel for the petitioners are not applicable to the facts and circumstances of the present case and the same are distinguishable on facts.

In view of the facts and circumstances of the case and the law settled by the Hon’ble Supreme Court and this Court in the cases referred to above, no illegality or perversity has been found in the impugned order passed by learned trial Court, as it has correctly adverted to the factual matrix in the light of the provision of Section 311 of Cr.P.C. (now Section 348 of BNSS) and rightly concluded that there is no ambiguity, which necessitates re-examination of DW1 & DW3. The necessary ingredients for invoking the power under Section 311 of Cr.P.C. (now Section 348 of BNSS) are completely missing.

Accordingly, the present petition is dismissed being devoid of any merit. VISHNU 2025.01.29 16:07 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

All the pending miscellaneous application(s), if any, shall stand disposed of.

However, nothing observed hereinabove shall be construed as expression of opinion of this Court on merits of the case and learned trial Court shall proceed without being prejudiced by the observations of this Court.