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2016 Supreme(HP) 595
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
P.S. Rana, J.
Hem Chand Sharma son of late Sh.Dina Nath Sharma - Petitioner
Versus
State of H.P. - Non-petitioner
Cr.MMO No. 238 of 2015
Decided On : 27-05-2016
Advocate Appeared:
For the Petitioner:Mr. N.K. Thakur Sr. Advocate with Mr. Surinder Saklani Advocate
For the Non-petitioner:Mr. R.K. Sharma Deputy Advocate General
The accused has a legal right to cross-examine witnesses, and the mere filing of a revision petition does not automatically stay the proceedings of the Trial Court.
Headnote:
Section 482 - Quashing of Orders - H.P. Tenancy and Land Reforms Act 1972, Section 118 - Code of Criminal Procedure 1973, Section 173 - Indian Evidence Act 1872
Fact of the Case:
The complainant alleged that the accused misrepresented the ownership and encumbrances of a property, leading to a criminal case. The accused did not cross-examine prosecution witnesses despite opportunities granted by the Trial Court.
Finding of the Court:
The Court found that the accused did not exercise their legal right to cross-examine the witnesses, and the mere filing of a revision petition did not stay the proceedings of the Trial Court. The Court granted the accused the opportunity to cross-examine the witnesses, subject to payment of costs.
Issues: Whether the petition filed under Section 482 Cr.P.C. is liable to be accepted on the grounds mentioned in the memorandum of grounds of the petition.
Ratio Decidendi: The accused has a legal right to cross-examine witnesses, and the mere filing of a revision petition does not automatically stay the proceedings of the Trial Court. In criminal cases, the right of cross-examination is a legal right of the accused.
Final Decision: The petition was partly allowed, granting the accused the opportunity to cross-examine the witnesses, subject to payment of costs. The orders of the Trial Court were modified accordingly, and the parties were directed to appear before the Trial Court on a specified date.
P.S. Rana, J.
Present petition is filed under Section 482 of Code of Criminal Procedure for quashing order dated 17.4.2015, 18.4.2015 and 21.4.2015 passed by learned Additional Chief Judicial Magistrate Nalagarh District Solan in criminal case No. 101/2 of 2011 title State of H.P. vs. Hem Chand whereby accused did not cross examine witnesses of prosecution despite opportunity granted by learned Trial Court.
Brief facts of the case
2. Complainant Mr. M.K. Seth M/s Innovation Textile Private Limited New Delhi filed FIR No. 15 dated 23.1.2010 alleging that H.C. Sharma and Anmol Sharma are father and son respectively and complainant was in need of land for setting up a textile industry and complainant was searching land in Himachal Pradesh. It is alleged that complainant came in contact with H.C. Sharma and Anmol Sharma and they told the complainant that they are owners of 61 bighas and 5 biswas of land situated at village Bater, P.O. Basti. It is alleged that H.C. Sharma and Anmol Sharma claimed that they are influenced persons in Himachal Pradesh and they would get all necessary permissions for sale from the Government of H.P. to complainant as required under Section 118 of H.P. Tenancy and Land Reforms Act 1972. It is alleged that complainant agreed to purchase the property and agreement to sell immovable land dated 28.9.2006 was executed between complainant and H.C. Sharma accused in consideration amount of Rs.73500000/- (Rupees seven crore thirty five lac). It is alleged that earnest money of sale was paid by complainant to H.C. Sharma accused to the tune of Rs.22050000/- (Rupees two crore twenty lac fifty thousand) by way of cheque No. 297051 dated 28.9.2006 drawn on HDFC Bank New Delhi. It is alleged that H.C. Sharma accused represented that immovable property is free from all encumbrances. It is alleged that it was agreed inter se the parties that permission would be obtained within 150 days and if permission would not be obtained then H.C. Sharma accused would refund the entire amount of Rs.2205000/- (Rupees two crore twenty lac fifty thousand) to complainant without any delay. It is alleged that complainant moved the Government for permission but accused persons did not cooperate after the receipt of earnest money of sale. It is alleged that immovable property involved in sale agreement was already mortgaged with State Bank of India Branch at Sai road Baddi Tehsil Nalagarh prior to agreement of sale in lieu of loan obtained by accused H.C. Sharma from State Bank of India to the tune of Rs.12.40 crore. It is alleged that loan which accused persons obtained from State Bank of India became NPA due to defaults of accused H.C. Sharma. Investigation was completed and thereafter investigation report under Section 173 of Code of Criminal Procedure 1973 was filed before learned Additional Chief Judicial Magistrate Nalagarh District Solan H.P. against H.C. Sharma. It was submitted in report filed under Section 173 of Code of Criminal Procedure that no criminal offence was committed by Anmol Sharma.
3. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf of non-petitioner and Court also perused the entire record carefully.
4. Following points arise for determination in this criminal revision petition:-
Point No.1
Whether petition filed under Section 482 Cr.P.C. is liable to be accepted on the grounds mentioned in memorandum of grounds of petition?
Point No. 2
Final Order.
Findings upon Point No.1 with reasons
5. It is proved on record that on 17.4.2015 learned Trial Court recorded statements of PW1 Veer Kumar, PW2 Bhalchander Singh Gautam and PW3 Rakesh Bajaj. It is proved on record that accused persons did not cross examine PW1 despite opportunity granted and cross examination of PW2 was deferred for next day and cross examination of PW3 was also deferred for next day because Court time was over. It is proved on record that thereafter PW2 appeared on next day before lea
