Decided on June 16,1970

In Re: Ramamoorthy Appellant
STATE Respondents


B.S.Somasundaram, J. - (1.) RAMAMOORTHY , the petitioner in these two revision petitions, was the Agricultural Extension Officer in the Theni Panchayat Union between July, 1966 and April, 1967. During this period, he was entrusted with manure and seeds valued at Rs. 5,994 -92 for sale to the ryots. The amount realised by him by such sales was not remitted by him into the Treasury. He was also entrusted with 300 cocoanut seedlings, 500 kgs. of sevin dust, and 2,400 kgs. of C.C. 25 paddy seeds during his tenure, for sale to the ryots. He failed to deposit Rs. 156, value of 130 cocoanut seedlings, Rs. 18 -40, value of 8 kgs. of sevin dust and Rs. 24 -80, value of 40 kgs. of paddy seeds. He was prosecuted for offences under Section 409 of the Indian Penal Code in two cases.
(2.) THIRU Suruliraj, the Commissioner of the Panchayat Union, deposed to the entrustment, the sale and the non -remittance. This evidence was given by him with reference to the stock register maintained in the office. The learned Sub -Divisional Magistrate, Usilampatti, who tried the petitioner, convicted him under Section 409, Indian Penal Code, and sentenced him to suffer rigorous imprisonment for one year with a fine of Rs. 500 in C.C. No. 165 of 1969 and 6 months with a fine of Rs. 50 in the other case, viz., C.C. No. 167 of 5969. He observed that the accused had sold the manure and seeds, realised the amount, but failed to deposit the same into the Treasury. He further observed that in the stock register, he had showed a ' nil ' balance. This stock register was not produced or marked on the side of the prosecution in the trial. The only document marked was Exhibit P -1, the report sent by P.W. 1 to the police on 15th October, 1968. In C.C. No. 167 of 1969 he observed that the accused had not noted in the stock register that 130 cocoanut seedlings got perished and destroyed. Here also the stock register was not produced or marked on the side of the prosecution in the trial. On appeal, the learned Sessions Judge, Madurai, held that the copies of the entries were not furnished to the accused and that the (earned trial Magistrate should not have adverted to and relied upon these entries in the stock registers for convicting the accused. With these observations, he set aside the convictions, but remanded the cases back to the lower Court for a fresh trial. The correctness of these orders are, now canvassed in these two revisions. The power to order retrial in a criminal case should be sparingly exercised and it should not be ordered for the sole object of enabling the prosecution to fill up any deficiency pointed out by the appellant. Where the prosecution of its own negligence fails to produce evidence which it was bound to, the appellate Court will not be justified in ordering a re -trial. Vide G.G. Jeremiah v. F.S. Vas, I.L.R.(1913) Mad. 457 :, 1913 22 M.L.J. 73, The prosecution in this case had the fullest opportunity of adducing all the evidence necessary to prove the charge. The stock register was there. Copies of the entries sought to be relied upon should have been furnished to the accused sufficiently in time. That was not done. The stock register itself was not marked. The entries were not proved. Still, the trial Magistrate has chosen to rely upon those entries for convicting the petitioner. This is highly irregular and the learned Sessions Judge has rightly held that the entire trial was vitiated. But, he erred in ordering a retrial, forgetting that it is a well -established rule of Criminal jurisprudence that the accused should not be placed on trial for the same offence more than once, excepting in very exceptional circumstances. This is not a case where the trial Court had no jurisdiction to try the petitioner; nor is it a case where the prosecutor, for reasons over which he had no control, could not have adduced or tendered material relevant documentary evidence for substantiating the charge levelled against the petitioner. As observed in the decision reported in Ukha Kolhe v. The State of Maharashtra : 1963 CriLJ 418, an order for retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.
(3.) HAVING found that the prosecution had failed to prove the cases, adducing the relevant evidence, the learned Sessions Judge should have straightaway acquitted the petitioner instead of giving a further opportunity to the prosecution to fill in the lacuna. It follows that the order for re -trial made by the learned Sessions Judge could not be sustained and the same is set aside. The result is that there is no legal evidence in proof of the charges levelled against the petitioner. Hence he is acquitted. Both the revisions are allowed.;

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