- (1.) B. L. Loomba J. This Criminal Revision under Section 397/401 of the Code of Criminal Procedure is directed against the Judgment and order dated 16-9-1981 passed by the then Second Additional Sessions Judge, Bahraich whereby he set aside the conviction of the applicant under Section 409 of the Indian Penal Code and punishment awarded for the same under judgment of the Sixth Additional Munsif Magistrate, Bahraich dated 15-4-1981 and remanded the case for retrial directing the learned Magistrate to permit additional evidence to be led.
(2.) THE applicant was a Taqavi Amin (Agriculture) in the office of Block Development Officer, Hazoorpur District Bahraich and was entrusted with the realisation of Government dues from the borrowers of agricultural loans in the area. THE charge against the applicant was that he realised a sum of Rs. 2267. 35 from some agriculturists under the receipts issued by him but did not deposit the same in the Government accounts and he further realised a sum of Rs. 213 from one Razzaq but issued a receipt only for Rs. 3. 35 and accordingly deposit ed the amount of Rs. 3. 35 and thereby he committed the offence of Criminal breach of trust punishable under Section 409 of the Indian Penal Code. THE defence set up by the accused-applicant was of denial with the specific plea that the alleged fictitious receipts had not been issued by him and in the absence of the applicant, the receipts may have been issued and amounts realised by one Ram Charitra in whose house the applicant had been living as a tenant during the relevant period. Learned Magistrate came to the conclusion that the accused applicant was a public servant entrusted with the realization of the Public dues and it was proved that he realised the amount in question but did not deposit the same in the Government Accounts and the offence was this held to have been sufficiently proved THE receipts in question were held to have been issued by the accused applicant on the basis of the oral testimony of the Block Development Officer. Learned Additional Sessions Judge, as appellate Court, considered the evidence on record and came to the conclusion that keeping in view the defence of the accused, it was necessary on the part of the learned Magistrate to have obtained the expert opinion of the Hand Writing Expert as to the alleged signatures of the accused on the receipts in question and that certain receipts which according to the learned Magistrate had been proved by the witnesses, were not duly exhibited and brought on record. In this regard mention is made to the receipts book which was said to have kept in the Malkhana. It was also pointed out that certain receipts marked as Ka-2 to Ka-8 were not shown in the index of the record. On that basis judgment and order of the learned Magistrate were set aside and the case was remanded with the direction that the matter shall be examined and dealt with according to law keeping in a view the observations of the learned Sessions Judge and permitting the parties to lead additional evidence. The grounds raised in the revision application are that at no stage, the prosecution had made any request for permission to lead additional evidence and the learned Sessions Judge by passing the impugned order is permitting the prosecution to fill up the missing links and lacunae in the case and the order as such amounts to gross abuse of process of court and law.
(3.) IN Ukha Kolhe v. State of Maharashtra, AIR 1963 Supreme Court 1531, the law laid down by Hon'ble the Supreme Court on this subject was that an order for retrial of a criminal case is made in exceptional cases and not unless the appellate court is satisfied that the Court trying the proceedings has no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account, in substance, there had been no real trial or that the prosecution or an accused was, for reasons over which he bad no control, prevented from leading or tendering evidence material to the charge and in the interest of justice, the appellate court deems it necessary, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of retrial wipes out from the records the earlier proceedings and exposes the person accused to another trial which affords the prosecutor to rectify the infirmities disclosed in the earlier trial. It was also observed that re-trial cannot be ordered merely to enable prosecution to adduce additional evidence for filling up lacunae. Proper course in suitable cases is to resort to procedure under Section 428 (1) of the Code (Old Code) when additional evidence is thought necessary. In the present case a large number of witnesses were examined to state that the accused had realised the Government, dues from them and issued receipts and eventually it was found out that these receipts were take or fictitious Shri M. P. Sharma, who was the Block Development Officer, Hazoorpur at the relevant time was also examined as P. W. 8. According to him complaints were received from the agriculturists concerned about payment of dues to the accused against receipts issued to them by him and that he made inquiries in the complaints of the agriculturists and come to the conclusion that the accused had received dues from various agriculturists but the amounts so received were not deposited in the Government accounts. According to him Receipts No. 25171 and 22139 were handed over to him by the agriculturists but he was unable to ascertain as from which office these receipts were actually issued. Shri Sharma did not prove any of the relevant receipts which were said to have been passed on to him by the various agriculturists. In the cross-examination of these witnesses it was suggested that the amounts were received by Rain Charitra and that the receipts were also issued by him and not by the accused. The witnesses admitted that the accused was living in the house of Ram Charitra and one or two witnesses also admitted that the money was received by Ram Charitra in the presence of the accused and same was passed on to the accused by Ram Charitra. In support of his plea, one Abdul Aziz Khan was examined as defence witness. According to this witness the accused was living in the house of Ram Charitra and in the absence of the accused, Ram Charitra used to realise Government dues from the borrower agricultu rists. Name of one person was expressly mentioned was Wajid son of Razza-que who is stated to have paid Rs. 100 to Ram Charitra. In cross-examination, this witness went to the extent of accepting that Ram Charitra quite frequ ently used to accept the dues from borrower-agriculturists in presence of the accused.;