BHUPENDRA SINGH THAKUR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) This petition is filed under Sec. 482 of the Code of Criminal Procedure against order dtd. 30/12/2021 passed by the Additional Judge to the Court of Additional Sessions Judge, Kabirdham in Criminal Appeal No. 14/2017 whereby the learned Sessions judge remitted the case to the Court of Judicial Magistrate First Class, Kabirdham with a direction to afford an opportunity to the prosecution to lead evidence arising out of judgment of conviction and order of sentence dtd. 27/2/2017 passed by the Judicial Magistrate First Class, Kabirdham in Criminal Case No. 98/2015.

(2.) Brief facts of the case are that at the relevant point of time between April 1996 to 31/12/1999, the petitioner was posted as Principal and one co-accused Dhruv Prasad Sharma was posted as a Clerk at Govt. Higher Secondary School Sahaspur Lohara. It is alleged that the co-accused Dhruv Prasad Sharma prepared fabricated fake bills for withdrawal of Provident Fund (PF) from the account of teachers working in the Higher Secondary School Sahaspur Lohara and other schools affiliated to Higher Secondary School Sahaspur Lohara and the same was signed by the petitioner who was Drawing and Disbursing Authority. It is further alleged that the accused persons have entered all fake bills in the BTRs and submitted them to the District Treasury Kabirdham and obtained tokens for payment and by tendering the tokens at the State Bank of India, Kawardha withdrew the amount in cash and embezzled the government fund for their own use. It is further alleged that the petitioner being Drawing and Disbursing authority made overwritings in serial numbers of BTRs and after making alterations, they made the counter files disappear. Entry of as many as 69 BTRs in the payment register and thereby accused persons knowingly that the documents are fake, used the documents as genuine and dishonestly withdrew and misappropriated amount of Rs.13,03,000.00. Charge-sheet was filed against the accused persons under Ss. 409, 420, 467, 468 and 471 r/w Sec. 34 of IPC and are facing trial before learned Judicial Magistrate First Class, Kabirdham (C.G.). After trial the learned Judicial Magistrate First Class, Kabirdham vide its judgment of conviction and order of sentence dtd. 27/2/2017 found the petitioner guilty and convicted him. Being aggrieved by the judgment of conviction and order of sentence dtd. 27/2/2017, petitioner preferred a Criminal Appeal No. 14/2017 before the Additional Sessions Judge Kabirdham. The learned Additional Sessions Judge, Kabirdham vide impugned judgment dtd. 30/12/2021 partly allowed the appeal by setting aside the conviction and sentences imposed by learned Judicial Magistrate First Class Kabirdham, remanded back the case to the court of Judicial Magistrate with direction to afford an appropriate opportunity to the prosecution to examine the handwriting expert and on being examined the hand writing expert by the prosecution, an opportunity of cross-examination is given to the defence, and thereafter passed the judgment considering the evidence adduced by the prosecution and defence as well. Hence, the petition.

(3.) Learned counsel for the petitioner submits that the order of remanding the case is bad in law because the prosecution had never sought any prayer for opportunity of examination of the prosecution hand writing expert. It was not a case where the prosecution was not given opportunities to examine the witness. On the other hand, it is crystal clear that the prosecution did not chose to examine hand writing expert as well as important witnesses even after several opportunities were given to them. The order of remanding the case is bad in law because the State had never challenged the order of the Judicial Magistrate whereby the application filed by the prosecution seeking permission under Sec. 311 of Cr.P.C. to examine the witness was rejected vide order dtd. 27/12/2016. The appeal is preferred by the petitioner against the judgment of conviction and order of sentence therefore, order could not have been passed in the appeal preferred by the convict to fill up the lacunae of the prosecution. Particularly, where such a relief has not been sought by the prosecution itself. Learned appellate court has failed to appreciate correctly the ratio laid down by Hon'ble the Supreme Court in the cases referred and relied on by him while remanding the case back. The appellate Court while reverting the case, committed gross error of law by remanding the trial to the learned trial court with the observation and direction to the prosecution to fulfill the lacuna and the wrong done by the prosecution. The order passed by the appellate court is absolutely illegal and contrary to the law because the appellate court cannot give opportunity again to the prosecution, when it has failed to prove its case beyond all reasonable doubt and the accused/petitioner herein is always entitled to get the benefit from the failure of the prosecution. The impugned order is against the settled principle of law and the appellate court cannot sit as a prosecution agency by directing and again providing opportunity to prove its case by pointing the lacuna of prosecution. He further submits that the learned appellate court at para 19 of its judgment held that judgment of conviction has been passed by the trial court on the basis of presumption. It is further held that the judgment passed by trial court is not a speaking judgment, wherein evidence of the prosecution has not at all been appreciated and reasons are not assigned, it is therefore, not possible for him to decide the appeal on the merits of the case. The learned appellate court has held that, had the trial court passed the judgment after considering the evidence then he would have either agree or disagree with the findings. But the direction passed by the appellate court is against the settled principle by the Hon'ble Supreme Court and the trial court. Therefore, the impugned order is liable to be set aside. Learned counsel for the petitioner has referred to the decision of Hon'ble Supreme Court made in the case of Satyajit Banerjee and others v. State of W.B. and others [2005 (1) SCC 115], Zahira Habibulla H. Sheikh v. State of Gujarat reported in 2004 (4) SCC 158 and in the matter of Harishankar Prasad Sahu and others v. State of Chhattisgarh passed in CRR No. 94/2014 vide order dtd. 4/4/2014 by this court.