KRISHNA KUMAR SRIVASTAVA Vs. STATE OF U P

JUDGEMENT

(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.

(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.