2019 (5) TMI 1215 - HC - Indian Laws

Dishonor of Cheque - Sales tax returns as Proof of transaction between the complainant - Maintainability of an application u/s 311 of Cr.P.C. summoning the Assistant Commissioner of Commercial Tax to explain the process of submitting the returns - production of sale returns from April-2016 to March-2017 - HELD THAT - It is not the case of the petitioner that no tax returns are filed and the very purpose of calling the Assistant Commissioner of Commercial Tax according to the petitioner who is an expert to explain the procedure for submitting the returns and also to explain regarding deficiency mistakes false filing or is there any illegal sale transaction. The Court below while considering the application in the impugned order also mentioned the reasons that 138 proceedings is a summary proceedings and the examination of the Assistant Commissioner of Commercial Tax in order to substantiate the defence is not at all necessary - in the very application nowhere it is stated that examination of the Assistant Commissioner of Commercial Tax is necessary to substantiate the defence of the petitioner herein. No doubt the principles relied upon by the petitioner s counsel is with regard to giving a fair opportunity to the accused and I have already pointed out that in the application nowhere he has stated that the evidence of the Assistant Commissioner of Commercial Tax is very material to substantiate his defence and hence there is force in the contention of the respondent s counsel that only with an intention to protect the proceedings the very application is filed. I do not find any reasons to interfere with the order of the Court below in setting aside the order and no need to examine the Assistant Commissioner of Commercial Tax in order to prove the issues between the parties when the issuance of the cheque has not been disputed and the defence has already been taken that the cheque was issued only for the purpose of security and the same can be considered before the Court below whether it is for the security purpose or cheque is issued insofar as to the debt or liability - petition dismissed.

Summary

Issues involved:
1. Application under Section 311 of Cr.P.C. to summon Assistant Commissioner of Commercial Tax for explaining sales tax returns.
2. Dismissal of application by the Court below.
3. Petition challenging the rejection of the application.
4. Examination of witnesses under Section 311 of Cr.P.C.
5. Fair opportunity to the accused for a fair trial.
6. Purpose of calling the Assistant Commissioner of Commercial Tax.
7. Necessity of examining the Assistant Commissioner of Commercial Tax.
8. Summary proceedings under Section 138 of N.I. Act.

Detailed Analysis:
1. The judgment involves an application under Section 311 of Cr.P.C. where the petitioner sought to summon the Assistant Commissioner of Commercial Tax to explain sales tax returns. The petitioner contended that the Assistant Commissioner's expertise was essential to clarify the procedure for submitting returns and to address any deficiencies or illegal transactions. The respondent argued against the application, stating that the case pertained to a dishonored cheque and did not involve sales or commercial tax issues, hence the application was baseless. The Court below rejected the application, leading to the petitioner's challenge in the present petition.

2. The petition contested the rejection of the application, emphasizing the necessity of the Assistant Commissioner's testimony to explain sales on credit basis and the relevance of sales tax returns. The petitioner argued that the Court below had not properly considered the importance of the Assistant Commissioner's evidence, which was crucial for the defense. The respondent, however, maintained that the application was an attempt to delay proceedings, citing previous similar applications and asserting that the Assistant Commissioner's testimony was unnecessary for resolving the dispute.

3. The Court analyzed the grounds of the application and found that while the petitioner sought the Assistant Commissioner's testimony for investigating the respondent's business, it did not establish the relevance of such evidence to the case. The Court noted that the complaint and evidence already presented covered the relevant transactions, and the Assistant Commissioner's testimony was deemed unnecessary for the summary proceedings under Section 138 of the N.I. Act. The Court upheld the rejection of the application, emphasizing that the purpose of calling the Assistant Commissioner was not substantiated and did not contribute to resolving the issues at hand.

4. The judgment delved into the principles of providing a fair opportunity to the accused, as highlighted by the petitioner's counsel, citing a relevant legal precedent. However, the Court found that the petitioner failed to demonstrate the critical importance of the Assistant Commissioner's testimony for the defense. The Court concluded that the application was filed with the intention to prolong the proceedings and did not serve a substantial purpose in the context of the case. Consequently, the petition challenging the rejection of the application was dismissed, affirming the decision of the Court below.