In cases where the trial court's record is destroyed, the Appellate Court cannot confirm the order of conviction in the absence of the record. Ordering a re-trial may be futile and amount to harassment to the accused if there is an efflux of time and unavailability of witnesses and documentary evidence.

V.M. Pancholi, J.

1. By way of this revision application, which is filed under Section 397 read with Section 401 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner - original accused has challenged the order dated 07.05.2009 passed by learned Sessions Court, Amreli in Criminal Appeal No. 22 of 2000 as well as the order dated 22.03.2000 rendered by learned Chief Judicial Magistrate, Amreli in Criminal Case No. 1386 of 1991.

2. Heard learned advocate Mr. Ashish Dagli for the petitioner and learned APP Mr. N.J. Shah for the respondent - state of Gujarat.

3. Learned advocate Mr. Dagli mainly submitted that M. Case No. 19 of 1989 was registered before Rajula Police Station against the petitioner for the offence punishable under Sections 406, 408, 409,465, 467, 477A and 34 of the Indian Penal Code. In the said complaint mainly it has been alleged that during the period between 01.09.1986 to 30.06.1987 when the petitioner was serving as a cashier in the Cooperative Bank, Amreli, he has temporarily misappropriated the amount worth Rs. 1,15,000/-. The entire amount has been thereafter deposited by the petitioner - accused. After registration of the FIR, charge-sheet came to be filed and during the course of the trial prosecution examined various witnesses and produced documentary evidence also. The trial court after considering the evidence produced on record, convicted the petitioner - accused for the offence punishable under Section 409 of IPC and sentenced him to suffer Rigorous Imprisonment for a period of three years and fine of Rs. 10,000/- was also imposed and in default of payment of fine, six months Simple Imprisonment was ordered. The petitioner was also convicted for the offence punishable under Section 477-A of IPC and he was sentenced to suffer Rigorous Imprisonment for a period of one year and fine of Rs. 5,000/- and in default of payment of fine, three months Simple Imprisonment and for the offence punishable under Sections 465 and 467, fine of Rs. 10,000/- was imposed and in default of payment of fine, six months Simple Imprisonment was ordered. The order of conviction was passed by the learned Chief Judicial Magistrate on 22.03.2000. The petitioner thereafter immediately preferred the appeal being Criminal Appeal No. 22 of 2000 before the learned Sessions Court, Amreli. Learned Sessions Court, by the impugned order dated 07.05.2009 dismissed the appeal and therefore the petitioner has preferred this revision application.

4. In the aforesaid background of the facts of the present case learned advocate Mr. Dagli for the petitioner mainly raised the contention that the Appellate Court has without verifying the record and proceedings of the Trial Court decided the appeal and therefore order passed by the Appellate Court is vitiated in view of the provisions contained in Sections 385 and 386 of the Code. Learned advocate for the petitioner has referred the order passed by the Appellate Court and submitted that it is an undisputed fact that the concerned clerk of the Trial Court had destroyed the record and therefore when the record of the Trial Court has been destroyed the only course open for the Appellate Court was to remand the matter back to the Trial Court for retrial or to acquit the petitioner - accused. Though the aforesaid provision was pointed out before the Appellate Court, the Appellate Court failed to consider the same.

4.1. Learned advocate Mr. Dagli has thereafter placed reliance upon the decisions rendered by Allahabad High Court in the case of (1) Sita Ram and others v. State, reported in 1981 CRI.L.J. Page 65, (2) in the case of Brahmanand Shukla v. State of U.P., reported in 2010(69) All CriC 749 : 2010 Law Suit (All) 220l, (3) in the case of Dina Nath and others v. State of U.P., reported in 1983 Crimes page 831 and the decision of Madras High Court in the case of Sornam v. State of Tamil Nadu, Inspector of Police, Thuckaley, reported in 1988 Law Suit (Mad) 4