ABDUL HAMID Vs. JUMAN

JUDGEMENT

(1.) This is rather an unfortunate case because the learned Sessions Judge who decided the appeal has done so on mere surmises and thereby caused injustice to the applicant. The applicant paid Rs. 400 to the opposite party Jumman in order to buy from him a sewing machine at Calcutta. But the opposite party neither bought the machine nor returned the money to the applicant. The applicant thereupon prosecuted him under Section 406 and succeeded in the trial Court but not in the Sessions Court. The defence of the opposite party in both the Courts was that the applicant had paid the money not to him but to one Abdul Majid and he even led evidence to prove this. But it has been found by both the Courts that the money was paid to the opposite party. On this finding he should have been convicted because he has not bought the machine and has misappropriated the money. His denial of the receipt of the money is nothing but misappropriation. The learned Sessions Judge, however, made out a defence which was never pleaded by the opposite party, and is even inconsistent with his case. He thought (without any evidence) that the opposite party paid the money to Abdul Majid in order to buy the machine and that if Abdul Majid did not buy the machine and does not return the money to the opposite party, the latter cannot be held guilty of criminal misappropriation. Had the opposite party admitted to have received the money and pleaded that he acted bona fide in paying it to Abdul Majid, he would have been entitled to be acquitted on that ground. But he himself did not admit that he had received the money and paid it to Abdul Majid and the learned Sessions Judge was not at all justified in presuming without any evidence that this was the case. It was not for him to make out a case which was not supported by any evidence on the record. He should have decided the matter on the basis of the material on record and not on mere surmises. What the opposite party told the applicant on his demand of the money is certainly no evidence of its truth. The acquittal of the opposite party toy him is clearly unjust.

(2.) Though a prayer is made in this application that I should set aside the order of acquittal and convict the opposite party, it is conceded, and it is also the law, that I cannot alter the finding of acquittal into one of conviction and that the most that I can do is to order retrial. I have to see whether a retrial would be justified.

(3.) Different Courts have expressed themselves differently about the circumstances in which a retrial can be ordered on revision against acquittal. The power to interfere with acquittal on revision has never been disputed the very provision that on revision a finding of acquittal cannot be converted into one of conviction shows that a High Court can interfere with acquittal on revision. Since it cannot convert a finding of acquittal into one of conviction, it can only order retrial. The problem is to know in what circumstances a High Court would be justified In ordering a retrial. I should make it clear here that when the acquittal is by the trial Court itself, the retrial has to be by it; there is no appellate Court to be considered. When, however, the acquittal is by an appellate Court, there are two Courts which can be ordered to retry the case--the trial Court which can be ordered to retry the case, and the appellate Court which can be ordered to retry or rehear the appeal. In such a case the retrial can be only by the appellate Court because it is that Court's judgment of acquittal that is set aside. The trial Court having convicted, cannot be ordered to retry the case. There will be no sense in ordering it to retry the case when it would have nothing to do but to confirm its previous judgment. This view is in conformity with the view taken by a Pull Bench of this Court in Queen Empress v. Balwant, 9 ALL. 134: (1886 A W N 322 F. B.) and followed in Ma Thaung v. Nandiya, A.I.R. (25) 1938 Rang. 193; (39 Cr. L. J. 623). In the present case it was the Sessions Judge who set aside the conviction of the opposite party and, therefore, if any retrial is to be ordered it would be of the appeal heard by him.