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2006 DIGILAW 996 (MP)

Ajay Pratap Singh v. State of Madhya Pradesh

2006-08-22

RAKESH SAKSENA

body2006
Judgment ( 1. ) PETITIONER by this revision has challenged the order dated 13-6-2005 passed by First Addl. Sessions Judge, Shahdol, in Criminal Appeal No. 215/04 whereby he remanded the case for adducing additional evidence by the parties and to decide it thereafter afresh. ( 2. ) THE petitioner was tried by the Judicial Magistrate First Class, Kotma, for the offence under Sections 420 and 409 of the Indian Penal Code and was convicted by judgment dated 27-11-2004 in Criminal Case No. 119 of 2002 and was sentenced to rigorous imprisonment for two years with fine of Rs. 3000/- and rigorous imprisonment for three years with fine of Rs. 3000/- on each count respectively. On appeal, the Additional Sessions Judge set aside the order of conviction against the petitioner and remanded the case to the Trial Court for taking additional evidence and disposal according to law. ( 3. ) THE prosecution case is that the petitioner was an employee in Jamuna Kalari Branch of the State Bank of India and was posted on the teller counter. 36 customers had deposited money in their respective recurring deposit accounts on different dates. Money was obtained from them by the petitioner, but was not deposited in their respective accounts, though the entries were made in their respective Pass Books. When the customers came to know about the fact that their money was not deposited in their recurring deposit accounts, they submitted their written complaints to the Branch Manager, Vinayak Ramchandra Joshi, who inquired into the matter and found that the money handed over by the customers had not been deposited in the Bank and was misappropriated by the petitioner. On the report lodged by Vinayak Ramchandra Joshi, a case under Sections 420 and 409 of IPC was registered by the police and after investigation, the charge-sheet was filed before the Court of Judicial Magistrate First Class, Kotma. During the trial, prosecution examined 9 witnesses out of which only 2 viz. , Ranjit Jaiswal (P. W. 1) and Mahendra (P. W. 2) were examined out of those 36 sufferers whose money was not credited in their recurring deposit accounts. Relying upon the evidence adduced by the prosecution, learned Magistrate held the petitioner guilty and convicted and sentenced him as mentioned above. On appeal, learned Addl. , Ranjit Jaiswal (P. W. 1) and Mahendra (P. W. 2) were examined out of those 36 sufferers whose money was not credited in their recurring deposit accounts. Relying upon the evidence adduced by the prosecution, learned Magistrate held the petitioner guilty and convicted and sentenced him as mentioned above. On appeal, learned Addl. Sessions Judge, Shahdol by the impugned order set aside the order of conviction of the petitioner and remanded the case directing the Trial Court to record the evidence of those witnesses whose names were mentioned in Para 8 of the judgment passed by him. He passed this order on the ground that the prosecution examined merely two as witnesses out of the big lot of cheated customers, notwithstanding the fact that they had made written complaints to the Bank and the applications submitted by them to the Bank were though produced and exhibited by the prosecution during the trial. These applications were proved by Vinayak Ramchandra Joshi (P. W. 4), Branch Manager of the Bank. According to the Appellate Court, these documents could have been proved only by the persons who had written and signed them. The Appellate Court held that the evidence of those customers who were not examined before the Trial Court by the prosecution was essential for just and proper decision of the case, therefore, the case was remanded to the Trial Court with a direction to summon the witnesses whose names were mentioned in Para 8 of the judgment and to record their evidence and also the evidence of other witnesses, if necessary, and to give opportunity to accused also to adduce his evidence in defence and to decide the case according to law. ( 4. ) LEARNED Counsel for the petitioner Shri Prakash Upadhyaya submitted that the Appellate Court was wrong in remanding the case for retrial, as retrial cannot be ordered to fulfil the lacunae in the prosecution evidence. In support of this argument, he placed reliance on the law laid down by the Apex Court in Machander v. The State of Hyderabad AIR1955 SC 792 , 1955 Crilj1644 , [1955 ]2 SCR524 , Bir Singh v. State of U. P. AIR1978 SC 59 , 1978 Crilj177a , (1977 )4 SCC420 and Abinash Chandra Bose v. Bimal Krishna Sen and Anr. (MR 1963 SC 316) and the judgment of Sikkim High Court in Pushpa Kumar v. State of Sikkim (1978 Cri. LJ 1379), Chandra Lal Das v. State of Tripura (2003 Cri. LJ 2162 ). In the case of Abinash Chandra Bose v. Bimal Krishna Sen and Anr. (supra), the Apex Court held that though the complainant had the fullest opportunity of adducing all the evidence necessary to prove the charge, the prosecution took its chance of having a decision in its favour. In the absence of anything to show that the Magistrate had refused to give an opportunity to the complainant to adduce the necessary evidence, the High Court was not justified in ordering retrial simply because the prosecution did not adduce all the evidence that could have been produced in support of its case. In the case of Machander v. State of Hyderabad (supra), it was held that the justice is not one sided. It has many facets and Court has to draw a nice balance between conflicting rights and duties. While it is incumbent on the Court to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. In the case of Bir Singh v. State of U. P. (supra), it has been held: It is well settled that though an Appellate Court has power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. If the prosecution was serious about this matter there was no reason why Ejaz Hussain could not be examined before the Sessions Court. ( 5. ) FROM perusal of the record adduced by the petitioner and the judgment passed by the Appellate Court, it is apparent that the produced documents (Ex. P-9 to Ex. P-40) were wrongly exhibited by Vinayak Ramchandra Joshi (P. W. 4) and the witnesses (the customers) who had executed the aforesaid documents and were the aggrieved person were not examined before the Trial Court. P-9 to Ex. P-40) were wrongly exhibited by Vinayak Ramchandra Joshi (P. W. 4) and the witnesses (the customers) who had executed the aforesaid documents and were the aggrieved person were not examined before the Trial Court. Though it is settled legal position that the case should not be remanded for retrial except in exceptional circumstances, yet in suitable cases, if the Sessions Judge thinks that in the interest of justice and for just and proper decision of the case, it is necessary that additional evidence should be brought on record, he should instead of directing retrial, resort to the procedure prescribed in Section 391 (old Section 428) of the Cr. PC. In Ukha Kolhe v. The State of Maharashtra AIR 1963 SC 1531 , the Supreme Court observed: In the present case, undoubtedly the trial before the Magistrate suffered from irregularities which we have already set out. The evidence, such as was led, was deficient in important respects; but that could not be a sufficient ground for directing a retrial. If the Sessions Judge thought that in the interests of justice and for a just and proper decision of the case, it was necessary that additional evidence should be brought on the record he should have, instead of directing a retrial and reopening the entire proceeding, resorted to the procedure prescribed by Section 428 (1) of the Code of Criminal Procedure. There is no doubt that if the ends of justice require, the Appellate Court should exercise its power under the said section. ( 6. ) THE observations made by the Additional Sessions Judge clearly spell out the necessity of recording additional evidence for which he rightly made direction as well, presumably under Section 391 of the Code of Criminal Procedure, but while doing so, he, however, fell into error of setting aside the conviction and remanding the case for the trial afresh which was entirely uncalled for and which part is accordingly liable to be quashed. As such, to that extent, revision is allowed and that part of the impugned order is set aside, with the direction that the Trial Court shall proceed in the case in accordance with the dictate of the provision of Section 391 of the Code of Criminal Procedure. ( 7. ) REVISION partly allowed.