- (1.) N. S. Gupta, J. This criminal revision is directed against the judgment and order dated 24-4-84, passed by Sri G. P. Srivastava, the then Sessions Judge, Ghazipur in Criminal Appeal No. 255 of 1983, dismissing the appeal of the revisionist-applicant and upholding the conviction and sentence awarded against him by III Addl. Munsif Magistrate, Ghazipur by his judgment and order dated 23-9-83, convicting the accused revisionist under Section 409, I. P. C. and sentencing him to undergo three years R. I. and to pay a fine of Rs. 5,000/- and in default of the payment of the same to further undergo one year's R. I.
(2.) THE impugned judgments of the two Courts below were challenged by the revisionist on the point of fact as well as on the point of law. For appreciating and ad judicating about the correctness, legality and propriety of the findings and sentence of the two Courts below, the original record of the Court below was summoned. It has been reported by Sri Anil Kumar, Special Addl. District and Sessions Judge, officiating incharge of Record Room, Ghazipur that excepting the judgments of the two Courts below the entire records of the case has since been weeded out. When the report of the officer incharge, record room shows that the record of the case has already been weeded out there is no ques tion for me to disbelieve the report of the officer incharge of the record room, Ghazipur, where the record should have been kept. When the record of the case is not available, as the same has already been weeded out, it is not possible for me to appreciate and to sustain the legality and propriety of the order of conviction recorded by the two Courts below against the accused revisionist. Sri P. N. Misra and Amar Saran, learned Counsel for the accused revisionist relying upon the preposition of law laid down by a Division Bench of this Court in Sita Ram and others v. State, reported in 1981 Cr LJ 65, contended before me that powers of the Court sitting in revision are almost the same as that of the appellate Court. When because of the fact that the record of the case was not available and reconstruction was not pos sible and when it is clear from the record of the case that the original record of the case has been weeded out meaning thereby destroyed, it is not possible for this Court to conform the conviction, which view was taken by the Division Bench of this Court, referred to above by Hon'ble K. N. Singh and Hon'ble N. N. Mittal, JJ. That beding so, I am of the opinion that the order of conviction and sentence challenged by the revisionist in this case are liable to be quashed. They are hereby quashed and the conviction and sentence passed against the accused revisionist is hereby set aside. It is directed that the bail bonds furnished by the accused revisionist shall stand can celled. It is further directed that the fine, if any, has since been deposited by the ac cused revisionist and the accused revisionist seeks to refund the same and satisfies the Court below by cogent evidence that he has deposited the said fine, it shall be refunded to him. With these observations the revision is allowed. Revision allowed. .;