An order for retrial cannot be made to enable the prosecution to lead evidence which it could but has not cared to lead.

B. C. Chakrabarti, J.:- This is a revisional application at the instance of the accused and is directed against an appellate order directing retrial of the petitioner on a charge under Section 406, I. P. C.

2. The petitioner was found guilty by the trial Court and convicted under Section 406, I.P.C. and sentenced to suffer S. I. for three months and to pay a fine of Rs. 5,000/-, in default to S.I. for two years.

3. The petitioner was the Secretary of Benimadhab Higher Secondary School at Sheakhala during 1971 and for a part of 1972. The said school had a savings Bank account with the United Bank of India and the appellant, as the Secretary of the school used to operate the said accounts. The allegation against the petitioner was that on 20-9-1971 he had withdrawn a sum of Rs. 8,500/- from the savings Bank account of the school by issuing a cheque and misappropriated the amount. It was the further allegation that on 17-1-1972 the petitioner was entrusted with Rs. 27,600/- being a portion of the Government grant to the school but that on 18-1-1972 the petitioner deposited a sum of Rs. 25,600/- only into the account of the school with the United Bank of India and, thus mis-appropriated a sum of Rs. 2,000/-.

4. The learned Magistrate trying the case found the petitioner guilty and sentenced him in the manner aforesaid. The petitioner preferred an appeal. The learned Court of appeal below has found that the prosecution allegation with regard to both these charges could not be said to have been proved on the evidence on record beyond doubt. Precisely he observed that the cheque by which the sum of Rs. 8,500/ was alleged to have been withdrawn was not even proved. He further found that the signature appearing on the cheque and purportedly of the petitioner was also not proved to be of the petitioner himself. The possibility of the signature being a forgery could not be ruled out in view of the evidence of Court witness No. 2 who was on staff of the Bank. The liability for the alleged misappropriation was sought to be fixed upon the petitioner on the ground that the withdrawal of the sum of Rs. 8,500/- was not entered in the cash book of the school. It was, therefore, complained by the prosecution that the appellant himself had misappropriated the money. The learned lower appellate Court observed that the clerk of the school Sailendra Nath Bhattacharjee who was responsible for writing the cash book was a very material witness but has not been examined during trial. He was a charge-sheet witness but no explanation was given, why he was not examined. After considering all these the learned lower appellate Court concluded "In my opinion, the evidence on record does not prove beyond doubt that the appellant had, withdrawn Rs. 8,500/- from the savings bank account of the school on 20-9-1971 and misappropriated the same".

5. In regard to the other charge also the learned lower appellate Court after considering the evidence held; "I am of the view that it has not been proved beyond doubt that the appellant was entrusted with Rs. 27,600/- on 17-1-1972 and he misappropriated Rs. 2,000/- therefrom." The prosecution case that a sum of Rs. 27,600/- was in fact given to the petitioner could be proved by examining Sailendra Nath Bhattacharjee but he was not examined. The Investigating Officer also was not examined at the trial.

6. Having, however, found that it had not been proved beyond doubt that the petitioner had misappropriated either Rs. 8,500/- or Rs. 2,000/- as alleged the lower appellate Court sent the case for retrial after setting aside the order of conviction and sentence. Reasons assigned for the order of retrial is that the charge was grave and therefore, in the opinion of the learned lower appellate Court the ends of justice demanded that there should be a retrial.

7. It is against this order the present Rule was obtained.

8. It is clear upon a perusal of the judgment of the lower appellate Court that the prosecution did not adduce