CRM-M-26267 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND 131 M/s Oswal Denims M/s Avion Fabrics and another CORAM: HON'BLE MRS. JUSTICE Present:- MANISHA BATRA, J. 1. Bharatiya Nagarik Suraksha Sanhita, 2023 the order dated 24.04.2025 (Annexure P Judicial Magistrate First Class, Ludhiana in Complaint bearing No. COMA/3520/2019, titled as petitioner under Section 1 (for short ‘the Act’) BNSS (which is pari 2. the petitioner against the respondents under Section 138 of the Act on the allegations that respondent No. 2, being proprietor of respondent No. 1/firm, had issued a cheque in favour of the petitioner to discharge the legall enforceable dishonoured and despite issuance of notice, no payment had been made, thereby compelling him to file the aforementioned complaint. During the 26267-2025 (O&M) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH M/s Oswal Denims Versus M/s Avion Fabrics and another CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Mr. Aalok Jagga, Advocate for the petitioner. MANISHA BATRA, J. (Oral) This petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 the order dated 24.04.2025 (Annexure P-14), passed by the Court of learned Judicial Magistrate First Class, Ludhiana in Complaint bearing No. COMA/3520/2019, titled as Oswal Denims vs. Avion Fabrics petitioner under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’), whereby an application filed by him under Section 348 of (which is pari materia with Section 311 of Cr.P.C.) Briefly stated, the aforementio the petitioner against the respondents under Section 138 of the Act on the allegations that respondent No. 2, being proprietor of respondent No. 1/firm, had issued a cheque in favour of the petitioner to discharge the legall enforceable liability of respondent No. 1/firm. The said cheque had been dishonoured and despite issuance of notice, no payment had been made, thereby compelling him to file the aforementioned complaint. During the IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-26267-2025 (O&M) Date of decision: 15.05.2025 ...Petitioner Versus ...Respondents MANISHA BATRA This petition has been filed by the petitioner under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short ‘BNSS’) for quashing of 14), passed by the Court of learned Judicial Magistrate First Class, Ludhiana in Complaint bearing No. Oswal Denims vs. Avion Fabrics, filed by the 38 of the Negotiable Instruments Act, 1881 , whereby an application filed by him under Section 348 of ria with Section 311 of Cr.P.C.) has been dismissed. Briefly stated, the aforementioned complaint has been filed by the petitioner against the respondents under Section 138 of the Act on the allegations that respondent No. 2, being proprietor of respondent No. 1/firm, had issued a cheque in favour of the petitioner to discharge the legall of respondent No. 1/firm. The said cheque had been dishonoured and despite issuance of notice, no payment had been made, thereby compelling him to file the aforementioned complaint. During the -1- 2025 (O&M) 15.05.2025 ...Petitioner ...Respondents This petition has been filed by the petitioner under Section 528 of for quashing of 14), passed by the Court of learned Judicial Magistrate First Class, Ludhiana in Complaint bearing No. , filed by the 38 of the Negotiable Instruments Act, 1881 , whereby an application filed by him under Section 348 of has been dismissed. ned complaint has been filed by the petitioner against the respondents under Section 138 of the Act on the allegations that respondent No. 2, being proprietor of respondent No. 1/firm, had issued a cheque in favour of the petitioner to discharge the legally of respondent No. 1/firm. The said cheque had been dishonoured and despite issuance of notice, no payment had been made, thereby compelling him to file the aforementioned complaint. During the MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document CRM-M-26267 pendency of the complaint, the petition 348 of BNSS seeking recall of respondent No. 2/accused, who had appeared as DW-1 while producing evidence in defence. The said application has been dismissed by the learned trial Court by passing the impugned order, op part of which, reads as under : 26267-2025 (O&M) pendency of the complaint, the petitioner moved an application under Section 348 of BNSS seeking recall of respondent No. 2/accused, who had appeared 1 while producing evidence in defence. The said application has been dismissed by the learned trial Court by passing the impugned order, op part of which, reads as under : “It is a settled law that power under Section 311 Cr.P.C. is discretionary in nature and must be exercised with caution and in exceptional circumstances. In the present case, question with regard to invoices, GST returns, balance sheets and payment made by the accused were very much well within the knowledge of the complainant and he ought to have asked the same when DW1 appeared in the witness box. Despite giving sufficient opportunities to cross be said that said questions were left to be put to the accused(DW1) due to oversight. Moreover, Hon’ble Supreme Court of India has held in pletho application under Section 311 Cr.P.C. can not be allowed merely in order to fill up lacun once the final arguments have been advanced by defence counsel. So, it seems that the present application has been filed at fag end the of the trial. 7. Moreover, Hon’ble Supreme Court of India in case titled as Neha Begum Versus Special Leave to Appeal (Crl.) No(s).3910/2024, Date of Decision:02.09.2024, has held that “ Court can summon, recall or re-examine a witness only if it is satisfied that the prayer is not made to fill lacuna and non would cause serious prejudice to the accused. The Court rejected vague or unsubstantiated grounds for re emphasized that Section 311 Cr.P.C. should not be used as er moved an application under Section 348 of BNSS seeking recall of respondent No. 2/accused, who had appeared 1 while producing evidence in defence. The said application has been dismissed by the learned trial Court by passing the impugned order, operative It is a settled law that power under Section 311 Cr.P.C. is discretionary in nature and must be exercised with caution and in exceptional circumstances. In the present case, question with regard to invoices, GST turns, balance sheets and payment made by the accused were very much well within the knowledge of the complainant and he ought to have asked the same when DW1 appeared in the witness box. Despite giving sufficient opportunities to cross-examine DW1, it can be said that said questions were left to be put to the accused(DW1) due to oversight. Moreover, Hon’ble Court of India has held in plethora of cases that application under Section 311 Cr.P.C. can not be allowed merely in order to fill up lacuna or gaps in parties case once the final arguments have been advanced by defence counsel. So, it seems that the present application has been filed at fag end the of the trial. 7. Moreover, Hon’ble Supreme Court of India in case titled Neha Begum Versus State of Assam, Petition(s) for Special Leave to Appeal (Crl.) No(s).3910/2024, Date of , has held that “ Court can summon, examine a witness only if it is satisfied that the prayer is not made to fill lacuna and non-summoning would cause serious prejudice to the accused. The Court rejected vague or unsubstantiated grounds for recall and emphasized that Section 311 Cr.P.C. should not be used as -2- er moved an application under Section 348 of BNSS seeking recall of respondent No. 2/accused, who had appeared 1 while producing evidence in defence. The said application has been erative It is a settled law that power under Section 311 Cr.P.C. is discretionary in nature and must be exercised with caution and in exceptional circumstances. In the present case, question with regard to invoices, GST turns, balance sheets and payment made by the accused were very much well within the knowledge of the complainant and he ought to have asked the same when DW1 appeared in the witness box. Despite giving examine DW1, it can not be said that said questions were left to be put to the accused(DW1) due to oversight. Moreover, Hon’ble ra of cases that application under Section 311 Cr.P.C. can not be allowed a or gaps in parties case once the final arguments have been advanced by defence counsel. So, it seems that the present application has been 7. Moreover, Hon’ble Supreme Court of India in case titled State of Assam, Petition(s) for Special Leave to Appeal (Crl.) No(s).3910/2024, Date of , has held that “ Court can summon, examine a witness only if it is satisfied that the summoning would cause serious prejudice to the accused. The Court call and emphasized that Section 311 Cr.P.C. should not be used as MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document CRM-M-26267 3. impugned order is not sustainable in the eyes of law as while passing the same, the learned Magistrate ignored the well settled proposition of law to the effect that it had power to recall and re case. The recall of DW as while cross 26267-2025 (O&M) a tool for dilatory tactics or to fill gaps in earlier cross examination.” Furthermore, Hon’ble Supreme Court of India in case titled as Satbir Singh Versus State of Haryana, Criminal Appeal No. of 2013 (@ SLP (CRL.) No.2400 of 2011, Date of Decision 04.07.2013 311 Cr.P.C. should not be used to fill lacuna in prosecution case and must be exercised to prevent failure of justice, ensuring the trial is not rendered i speculative. So, in view of the citations of Hon’ble Supreme Court of India as well as facts and circumstances as mentioned above, present application has been moved by the learned counsel for the applicant at fag end of the trial when the final arguments have already been advanced by the opposite party. Moreover, re witness would be grave prejudice to the accused. Thus, it seems that present application has been moved in order to fill up lacuna. 8. Accordingly, in view application moved by applicant/complainant stands dismissed. Findings herein are for the sole purpose of disposing off the present application and shall not affect the merits of the case.” It is argued by learned counsel for impugned order is not sustainable in the eyes of law as while passing the same, the learned Magistrate ignored the well settled proposition of law to the effect that it had power to recall and re-examine the witness at any stage of case. The recall of DW-1 was very much essential for just decision of the case as while cross-examining him previously, certain material questions could not a tool for dilatory tactics or to fill gaps in earlier cross Furthermore, Hon’ble Supreme Court of India in Satbir Singh Versus State of Haryana, Appeal No. of 2013 (@ SLP (CRL.) No.2400 of 2011, Date of Decision 04.07.2013, has held that Section 311 Cr.P.C. should not be used to fill lacuna in prosecution case and must be exercised to prevent failure of justice, ensuring the trial is not rendered inconclusive or So, in view of the citations of Hon’ble Supreme Court of India as well as facts and circumstances as mentioned above, present application has been moved by the learned counsel for the applicant at fag end of the trial final arguments have already been advanced by the opposite party. Moreover, re-cross-examination of witness would be grave prejudice to the accused. Thus, it seems that present application has been moved in order to 8. Accordingly, in view of aforementioned reasons application moved by applicant/complainant stands dismissed. Findings herein are for the sole purpose of disposing off the present application and shall not affect It is argued by learned counsel for the petitioner that the impugned order is not sustainable in the eyes of law as while passing the same, the learned Magistrate ignored the well settled proposition of law to the examine the witness at any stage of 1 was very much essential for just decision of the case examining him previously, certain material questions could not -3- a tool for dilatory tactics or to fill gaps in earlier cross- Furthermore, Hon’ble Supreme Court of India in Satbir Singh Versus State of Haryana, Appeal No. of 2013 (@ SLP (CRL.) No.2400 of , has held that Section 311 Cr.P.C. should not be used to fill lacuna in prosecution case and must be exercised to prevent failure of justice, nconclusive or So, in view of the citations of Hon’ble Supreme Court of India as well as facts and circumstances as mentioned above, present application has been moved by the learned counsel for the applicant at fag end of the trial final arguments have already been advanced by examination of witness would be grave prejudice to the accused. Thus, it seems that present application has been moved in order to of aforementioned reasons application moved by applicant/complainant stands dismissed. Findings herein are for the sole purpose of disposing off the present application and shall not affect the petitioner that the impugned order is not sustainable in the eyes of law as while passing the same, the learned Magistrate ignored the well settled proposition of law to the examine the witness at any stage of the 1 was very much essential for just decision of the case examining him previously, certain material questions could not MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document CRM-M-26267 be put to him. Due to non serious prejudice is bei non-examination of DW as a lacuna which is sought to be filled up by the petitioner. With these broad submissions, it is urged that the petition des arguments, learned counsel for the petitioner has relied upon the authority cited as Rajendra Prasad vs. the Narcotics Cell through its Officer charge, 1993 RCR (Criminal) 440 4. length and have also gone through the material placed on record carefully. 5. section 348 of BNSS not be allowed only to fill up lacunas in the case of the prosecution, or of the defence or to give an unfair advantage to the opposite party. Kumar Chatterjee vs. Central Bureau of Investigation, 2019 (2) Scale 654 Hon'ble Supreme Court has held that the power conferred under Section 311 Cr.P.C. should be invoked by the court only to meet the ends of justice and for strong and valid reasons and it should be exercised with great caution and circumspection. Though, S Court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. The provisions of this section should be exercised consist of the Code and the principles of criminal law. The discretionary power conferred under Section 311 Cr.P.C. has to be exercised judicially for reasons 26267-2025 (O&M) be put to him. Due to non-examination of DW serious prejudice is being caused to the petitioner. It is further argued that examination of DW-1 on those points cannot be taken into consideration as a lacuna which is sought to be filled up by the petitioner. With these broad submissions, it is urged that the petition des arguments, learned counsel for the petitioner has relied upon the authority Rajendra Prasad vs. the Narcotics Cell through its Officer charge, 1993 RCR (Criminal) 440. I have heard learned counsel for th length and have also gone through the material placed on record carefully. It is well settled proposition of law that an application under section 348 of BNSS (which is pari materia with Section 482 of Cr.P.C.) allowed only to fill up lacunas in the case of the prosecution, or of the defence or to give an unfair advantage to the opposite party. Kumar Chatterjee vs. Central Bureau of Investigation, 2019 (2) Scale 654 Hon'ble Supreme Court has held that the power conferred under Section 311 Cr.P.C. should be invoked by the court only to meet the ends of justice and for strong and valid reasons and it should be exercised with great caution and circumspection. Though, Section 311 Cr.P.C. confers vast discretion upon the Court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. The provisions of this section should be exercised consist of the Code and the principles of criminal law. The discretionary power conferred under Section 311 Cr.P.C. has to be exercised judicially for reasons examination of DW-1 on those very points, a ng caused to the petitioner. It is further argued that 1 on those points cannot be taken into consideration as a lacuna which is sought to be filled up by the petitioner. With these broad submissions, it is urged that the petition deserves to be allowed. To fortify his arguments, learned counsel for the petitioner has relied upon the authority Rajendra Prasad vs. the Narcotics Cell through its Officer I have heard learned counsel for the petitioner at considerable length and have also gone through the material placed on record carefully. It is well settled proposition of law that an application under materia with Section 482 of Cr.P.C.) must allowed only to fill up lacunas in the case of the prosecution, or of the defence or to give an unfair advantage to the opposite party. In Swapan Kumar Chatterjee vs. Central Bureau of Investigation, 2019 (2) Scale 654 Hon'ble Supreme Court has held that the power conferred under Section 311 Cr.P.C. should be invoked by the court only to meet the ends of justice and for strong and valid reasons and it should be exercised with great caution and ection 311 Cr.P.C. confers vast discretion upon the Court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. The provisions of this section should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 Cr.P.C. has to be exercised judicially for reasons -4- 1 on those very points, a ng caused to the petitioner. It is further argued that 1 on those points cannot be taken into consideration as a lacuna which is sought to be filled up by the petitioner. With these broad erves to be allowed. To fortify his arguments, learned counsel for the petitioner has relied upon the authority Rajendra Prasad vs. the Narcotics Cell through its Officer-in e petitioner at considerable It is well settled proposition of law that an application under must allowed only to fill up lacunas in the case of the prosecution, or of the In Swapan Kumar Chatterjee vs. Central Bureau of Investigation, 2019 (2) Scale 654, Hon'ble Supreme Court has held that the power conferred under Section 311 Cr.P.C. should be invoked by the court only to meet the ends of justice and for strong and valid reasons and it should be exercised with great caution and ection 311 Cr.P.C. confers vast discretion upon the Court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. The ently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 Cr.P.C. has to be exercised judicially for reasons MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document CRM-M-26267 stated by the Court and not arbitrarily or capriciously. Reference in this context can be made to well as to the judgments rendered by this Court in Walia : 1998 (3) Civil Court Cases 597(1)(P&H) Devinder Kumar : 1999(1) Civil Court C 7. facts of the present case, it has been noticed that respondent No. 2/accused Tushar Khanna had appeared as his own witness while producing defence evidence. He had examination was deferred on that date on the request of learned counsel for the petitioner and this witness was then cross detailed cross accused has been closed on 14.02.2025. The petitioner filed aforesaid application under Section 348 of BNSS on 07.04.2025 making prayer for recalling of DW invoices in question with GST Depa Input Tax Credit qua those invoices in their accounts. It is submitted that respondent No.2/accused claimed that the invoices so relied upon by the petitioner were false and, therefore, recalling of DW perusal of the record, reasonable ground for allowing the prayer as made by the petitioner has been made out, in view of the fact that due opportunity to cross been given to the petit fact that certain invoices, GST returns and balance sheets etc. were in 26267-2025 (O&M) stated by the Court and not arbitrarily or capriciously. Reference in this ext can be made to Vijay Kumar vs. State of U. P. : (2011) 8 SCC 136 well as to the judgments rendered by this Court in Walia : 1998 (3) Civil Court Cases 597(1)(P&H) Devinder Kumar : 1999(1) Civil Court Cases 202(P&H) On applying the above discussed position of law to the peculiar facts of the present case, it has been noticed that respondent No. 2/accused Tushar Khanna had appeared as his own witness while producing defence evidence. He had been examined-in-chief on 25.11.2024. His cross examination was deferred on that date on the request of learned counsel for the petitioner and this witness was then cross detailed cross-examination has been conducted. The defence evidenc accused has been closed on 14.02.2025. The petitioner filed aforesaid application under Section 348 of BNSS on 07.04.2025 making prayer for recalling of DW-1 i.e. accused by submitting that he had paid GST on the invoices in question with GST Department and the respondents had taken Input Tax Credit qua those invoices in their accounts. It is submitted that respondent No.2/accused claimed that the invoices so relied upon by the petitioner were false and, therefore, recalling of DW perusal of the record, I am, however, of the considered opinion that no reasonable ground for allowing the prayer as made by the petitioner has been made out, in view of the fact that due opportunity to cross been given to the petitioner and he had been so cross fact that certain invoices, GST returns and balance sheets etc. were in stated by the Court and not arbitrarily or capriciously. Reference in this Vijay Kumar vs. State of U. P. : (2011) 8 SCC 136 well as to the judgments rendered by this Court in Bhag Singh vs. Madan Lal Walia : 1998 (3) Civil Court Cases 597(1)(P&H) and Joginder Singh vs. ases 202(P&H). On applying the above discussed position of law to the peculiar facts of the present case, it has been noticed that respondent No. 2/accused Tushar Khanna had appeared as his own witness while producing defence chief on 25.11.2024. His cross examination was deferred on that date on the request of learned counsel for the petitioner and this witness was then cross-examined on 15.01.2025. A examination has been conducted. The defence evidence of the accused has been closed on 14.02.2025. The petitioner filed aforesaid application under Section 348 of BNSS on 07.04.2025 making prayer for 1 i.e. accused by submitting that he had paid GST on the rtment and the respondents had taken Input Tax Credit qua those invoices in their accounts. It is submitted that respondent No.2/accused claimed that the invoices so relied upon by the petitioner were false and, therefore, recalling of DW-1 is must. On a careful I am, however, of the considered opinion that no reasonable ground for allowing the prayer as made by the petitioner has been made out, in view of the fact that due opportunity to cross-examine DW-1 had ioner and he had been so cross-examined in detail. The fact that certain invoices, GST returns and balance sheets etc. were in -5- stated by the Court and not arbitrarily or capriciously. Reference in this Vijay Kumar vs. State of U. P. : (2011) 8 SCC 136 as Bhag Singh vs. Madan Lal Joginder Singh vs. On applying the above discussed position of law to the peculiar facts of the present case, it has been noticed that respondent No. 2/accused Tushar Khanna had appeared as his own witness while producing defence chief on 25.11.2024. His cross- examination was deferred on that date on the request of learned counsel for examined on 15.01.2025. A e of the accused has been closed on 14.02.2025. The petitioner filed aforesaid application under Section 348 of BNSS on 07.04.2025 making prayer for 1 i.e. accused by submitting that he had paid GST on the rtment and the respondents had taken Input Tax Credit qua those invoices in their accounts. It is submitted that respondent No.2/accused claimed that the invoices so relied upon by the areful I am, however, of the considered opinion that no reasonable ground for allowing the prayer as made by the petitioner has been 1 had examined in detail. The fact that certain invoices, GST returns and balance sheets etc. were in MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document CRM-M-26267 existence, cross-examining the DW when the final arguments had already been advanced by the opposite party. No doubt, Court examine a witness if the same is considered to be necessary for just decision, however, at the same time, it has also to be seen that the said re examination/cross the case of that particular party. It is not the position that no opportunity to cross-examine DW petitioner has also failed to explain as to how the further cross DW-1 and putting questions with regard to existence etc. would help the Court in arriving at a proper decisio the learned trial Court has committed no error in declining the prayer made by the petitioner, especially keeping in view the fact that even final arguments have been advanced by the opposite party. Accordingly, finding no merit in the present petition, the same is dismissed. 15.05.2025 Waseem Ansari Whether speaking/reasoned Whether reportable 26267-2025 (O&M) was very much within the knowledge of the petitioner at the time of examining the DW-1. The application had been when the final arguments had already been advanced by the opposite party. No doubt, Courts have ample power to recall or re examine a witness if the same is considered to be necessary for just decision, owever, at the same time, it has also to be seen that the said re examination/cross-examination is not with an intention to fill up the lacuna in the case of that particular party. It is not the position that no opportunity to examine DW-1 had been given to the petitioner in this case. The petitioner has also failed to explain as to how the further cross 1 and putting questions with regard to existence etc. would help the Court in arriving at a proper decisio the learned trial Court has committed no error in declining the prayer made by the petitioner, especially keeping in view the fact that even final arguments have been advanced by the opposite party. Accordingly, finding no merit in the present petition, the same is dismissed. 15.05.2025 Whether speaking/reasoned Whether reportable was very much within the knowledge of the petitioner at the time of 1. The application had been filed by him at the stage when the final arguments had already been advanced by the opposite party. have ample power to recall or re-examine or further cross examine a witness if the same is considered to be necessary for just decision, owever, at the same time, it has also to be seen that the said re examination is not with an intention to fill up the lacuna in the case of that particular party. It is not the position that no opportunity to iven to the petitioner in this case. The petitioner has also failed to explain as to how the further cross-examination of 1 and putting questions with regard to existence of invoices, GST returns etc. would help the Court in arriving at a proper decision of the case. As such, the learned trial Court has committed no error in declining the prayer made by the petitioner, especially keeping in view the fact that even final arguments have been advanced by the opposite party. Accordingly, finding no merit in the present petition, the same is dismissed. (MANISHA BATRA) JUDGE Yes/No Yes/No -6- was very much within the knowledge of the petitioner at the time of filed by him at the stage when the final arguments had already been advanced by the opposite party. examine or further cross- examine a witness if the same is considered to be necessary for just decision, owever, at the same time, it has also to be seen that the said re- examination is not with an intention to fill up the lacuna in the case of that particular party. It is not the position that no opportunity to iven to the petitioner in this case. The examination of of invoices, GST returns n of the case. As such, the learned trial Court has committed no error in declining the prayer made by the petitioner, especially keeping in view the fact that even final arguments have been advanced by the opposite party. Accordingly, finding no merit in MOHAMMAD WASEEM ANSARI 2025.05.20 09:23 I attest to the accuracy and integrity of this document