A retrial cannot be ordered by the Appellate Court merely to address prosecution errors; it must be justified to prevent a failure of justice.

CAV Judgment

1. By way of these Criminal Revisions, the applicants have challenged the judgment dated 28.02.2011 passed by the 1 st Additional Sessions Judge, Mahasamund, C.G. in Criminal Appeals No.201/2010 & 202/2010.

2. The applicants are aggrieved by the judgment dated 28.02.2011 to the extent that the 1 st Additional Sessions Judge, while passing the impugned judgment after setting aside the judgment of conviction and order of sentence dated 12.11.2010 passed by the Judicial Magistrate First Class, Pithora, District Mahasamund, C.G. in Criminal Case No.815/2009, has remanded the matter back to the trial Court concerned for its retrial with a direction to summon the handwriting expert, record his statement and produce the original documents. Liberty was also given to the prosecution to call any witness again if it so desires and then after hearing both the parties, decide the case afresh.

3. Brief facts of the case are that applicant- Amritlal Patel, who was working as a Branch Manager in District Co-operative Central Bank Maryadit, Raipur Branch at Pirda and applicant- Prahlad Pradhan, who was working as a Manager in Gramin Seva Sahkari Samiti, Pithoura, District Mahasamund, C.G. in collusion with other co-accused persons, after making forged signatures of some agriculturists and also preparing forged loan cheques in their favour, embezzled huge amount of Rs.43,14,063.10/-. On the report of complainant- P.L. Dansena on 18.09.2008, FIR was registered against the applicants and other co-accused persons.

4. After completion of investigation, charge sheet was filed. The applicants abjured the charge and pleaded non-guilty.

5. Learned Court of JMFC, after appreciation of oral and documentary evidence, convicted the applicants for the offence under Section 409/34 of IPC and sentenced them to undergo R.I. for three years and fine of Rs.2,000/-; Section 420/34 of IPC and sentenced them to undergo R.I. for six months and fine of Rs.2,000/-; Section 467/34 of IPC and sentenced them to undergo R.I. for one year and fine of Rs.2,000/-; Section 468/34 of IPC and sentenced them to undergo R.I. for six months and fine of Rs.2,000/- and Section 471/34 of IPC and sentenced them to undergo R.I. for one year and fine of Rs.2,000/- to each of the applicants and in default of payment of fine amount to undergo additional simple imprisonment for one month to each of the applicants with a direction to run the sentences separately. The said judgment was challenged by the applicants in criminal appeal, however, the Appellate Court vide judgment dated 28.02.2011, remanded the matter back to the trial Court concerned with the aforesaid direction as mentioned in para 2 of this judgment. Hence, this revision.

6. Learned counsel for the applicants submits that the order passed by the learned Appellate Court is arbitrary, illegal, erroneous and bad in the eye of law. He further submits that when the Court of JMFC had already convicted the applicants for the offence charged and it was the appeal against the conviction of the applicants, then under such circumstances, the Appellate Court could not have remitted the matter back to the Court of the JMFC. He further submits that power under Sections 386 & 391 of Cr.P.C. is to be exercised in an exceptional cases and not to fill up the lacuna on the part of the prosecution. He also submits that the learned Appellate Court has not considered the fact that although the report of the handwriting expert was filed before the trial Court, but no application under Section 931 of Cr.P.C. has been moved by the prosecution for calling upon the concerned person as witness whereas there was ample opportunity to the prosecution to examine the concerned witness. Therefore, it is prayed by learned counsel for the applicants that the impugned judgment passed by the learned Appellate Court deserves to be set aide. Reliance has been placed on the decision of Hon'ble Supreme Court in the matter of Nasib Singh vs State of Punjab and