JUDGMENT Hon’ble S.C. Agarwal, J.—This is an appeal under Section 449 Cr.P.C. against order dated 11.9.1978 passed by the 4th Addl. Sessions Judge, Agra in Criminal Case No. 3 of 1977 arising out of S.T. No. 153A of 1976, State v. Raja Ram, whereby a penalty of Rs. 2000/- each was imposed on sureties Ram Prasad and Mangal Sen- appellants under Section 446 Cr.P.C. 2. I have heard Sri P.N. Mishra, learned Senior Advocate assisted by Sri Apul Mishra, learned counsel for the appellants, learned AGA for the State and have gone through the impugned judgment. 3. Trial Court’s record is not available. Appeal was filed on 5.10.1978 and admitted on 6.10.1978. For the first time the case was listed on 29.7.2008 with the office report dated 12.8.2005 that trial Court’s record was summoned but the same was not traceable and appears to have been lost. It also transpires from the letter dated 6th May, 2005 of the District Judge, Agra that orders for reconstruction of the record have been passed. 4. A non-Judicial Enquiry No. 22 of 2005 was also instituted and Sri P.N Sachan Addl. District Judge, Court No. 8, Agra was appointed as Enquiry Officer by the District Judge. Report of Sri Mohd. Aqbal Addl. District Judge, Court No. 4, Agra- subsequent Enquiry Officer dated 12.11.2008 addressed to the District Judge is on record. This indicates that both the appellants-sureties Ram Prasad and Mangal Sen have died. Their legal heirs do not possess any papers relating to the file. Original sureties bonds are present in the file of the Sessions Trial. Order-sheet of the Criminal Misc. Case No. 3 of 1977 has been reconstructed. Photo-stat copies of the surety bonds are also available. Copy of notice issued to appellant No. 2 Mangal Sen has already been reconstructed but the reply filed by the sureties and the evidence adduced by them before the trial Court could not be reconstructed. 5. Learned counsel for the appellant and learned AGA for the State submitted that the appeal be decided on the basis of material on record. 6. Learned counsel for the appellant submitted that both the appellants have died. The appellants could not have produced the accused Raja Ram in Court as he was reported to be dead. Ultimately, the trial Court declared the accused Raja Ram absconder as is evident from the order dated 11.2.1978 passed in Criminal Misc. 6. Learned counsel for the appellant submitted that both the appellants have died. The appellants could not have produced the accused Raja Ram in Court as he was reported to be dead. Ultimately, the trial Court declared the accused Raja Ram absconder as is evident from the order dated 11.2.1978 passed in Criminal Misc. Case No. 3 of 1977. It was further submitted that in the absence of complete record and the copies of the evidence produced by the appellants before the trial Court, the appeal cannot be properly adjudicated. It was further submitted that no useful purpose would be served by order of remand and reconstruction by the trial Court as both the sureties have already died. In these circumstances, the amount of penalty be remitted as the same has become irrecoverable. 7. In the absence of complete record i.e. reply of the appellants to the show-cause notice under Section 446 Cr.P.C. and evidence adduced by them before the trial Court, correctness of the impugned judgment cannot be ascertained. Remand or retrial of the sureties is not possible as both the appellants have died. In these circumstances, I have no option but to allow the appeal and set aside the impugned judgmdent. Criminal Appeal is allowed. The impugned judgment and order dated 11.9.1978 passed by the 4th Addl. Sessions Judge, Agra in Criminal Misc. Case No. 3 of 1977 arising out of S.T. No. 153A of 1976 is set aside and penalty imposed on appellants- sureties Ram Prasad and Mangal Sen is remitted. Let a copy of this judgment be sent to the Sessions Judge, Agra within a week for making necessary entries in the fine register. ————