The scope of remand in criminal cases is limited to exceptional circumstances as per the legal provisions established by the Apex Court.

Heard finally. Both the writ petitions question propriety and legality of the order recorded by the learned Ad-hoc District Judge -1 and Additional Sessions Judge, Vasai, dated 29th February 2012 in criminal appeal Nos.56 of 2007 and 57 of 2007 whereby he has set aside the judgment of conviction recorded by the learned J.M.F.C., Vasai and remanded the matters to the leaned J.M.F.C., Vasai for fresh trial.

2. A Memorandum of Understanding was executed by and between Mr J.S. Bhat and respondent No.1 on account of cancellation of agreement dated 1st April 1997 and as directed by Mr Bhat, the respondent No.1 has agreed to pay Rs.14,65,000/-to the petitioner. In discharge of said liabilities, the respondent No.1 had issued four cheques, three were for Rs.3,70,000/-and one was for Rs.3,55,000/-. Since the cheques were in favour of the petitioner, pursuant to the Memorandum of Understanding, the petitioner deposited the same. They were dishonoured, unpaid for insufficient funds, followed by statutory notice dated 10th February 2001. The respondent No.1 through his Advocate replied the notice (Exh.83) admitting the liability including issuance of cheques in favour of the petitioner.

3. Since the payment was not made, the petitioner filed two complaints before the learned J.M.F.C., Vasai. The same was questioned by the respondent No.1 before this Court in writ petition No.241 of 2004 and by order dated 10th September 2004, this Court declined to accept the contention raised by the respondent No.1.

4. The parties went to the trial before the learned J.M.F.C., Vasai and as stated above, the issue of conviction came to be recorded against the respondent No.1.

5. The grievance of the petitioner is that there was nobody's demand before the learned Additional Sessions Judge, Vasaito remand the matter, the observations upholding opportunity to the petitioner as complainant to lead evidence was not warranted nor complainant ever urged to this effect. In order to stress this point, the complainant/ petitioner has placed reliance to the judgment of this Court in the matter of Shivgonda Malappa Huchgond vs. Ramgonda B. Santi and others, reported in 1999 Cri.L.J. 1222.

6. The petitioner has invited my attention to the Memorandum of Understanding for signature of respondent No.1 and the transaction of sale of properties by the respondent No.1 to Shri Bhat upon termination thereof.

7. In the cross-examination before the learned J.M.F.C., as to how Memorandum of Understanding incorporated payment of Rs.14,65,000/-, the petitioner has clarified that Shri Mahambare owed him certain liabilities in respect of sale transactions of immovable properties in lieu thereof, the amount was agreed to be paid and consequently the respondent No.1 having settled his controversy with Mr Bhat, agreed to release the payments in favour of the petitioner. In this context, the petitioner submits that he was entitled to recover the amount for which above referred four cheques were issued.

8. The findings of the learned Additional Sessions Judge, unfortunately travels to the area not contemplated and expected of him as to what was the source of money for the petitioner to advance money to Mr. Bhat or Mr. Bhat to direct the respondent No.1 to make the payment to the petitioner. The learned Judge has observed as under :-

"The complainant has not rendered explanation of accumulation of such a huge amount. Hence, though the third person other than drawee may file complaint, he should make it clear as to how he had stepped in the shoes of the drawee."

These are in effect observations uncalled for determination. The scope of remand is highlighted in various judgments of the Apex Court way back in 1963 in the matter of Pandit Ukha Kolhe vs. The State of Maharashtra, reported in AIR 1963 SC 1531. The Hon'ble Supreme Court has observed that :-

"An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate Court is satisfied that the Cour