The court affirmed the necessity of ensuring proper proof for admissibility of evidence in trials and upheld the appellate court's authority to remand cases.

ORDER

Dated this the 04th day of April, 2022 The revision petitioner is the accused in ST No.9/2016 on the files of Judicial First Class Magistrate Court-II, Parappanangadi (for short ‘the trial court’) registered for an offence punishable under Section 138 of the Negotiable Instruments Act , 1881 (for short ‘N.I.Act’). The accused successfully challenged the order of conviction and sentence passed by the trial court in S.T.No.9/2016 before Additional Court of Sessions-II, Manjeri (for short ‘the appellate court’) in Crl.A.No.78/2019. The appellate court set aside the judgment of the trial court and remanded the case to the trial court for conduct of trial afresh. The judgment by which the case was remanded to the trial court for fresh consideration was assailed by raising multifarious grounds in the appeal memorandum which are extracted hereunder:

“1. The order of remand passed by the appellate court is improper and illegal, since it was not empowered under Section 386 (b)(i) Cr.P.C. to do so. (b)(i) Cr.P.C. only permits the court either to set aside the order by reversal or discharge or in the alternative to order a remand and not a simultaneous exercise of both.

2. Several opportunities are already given to the complainant by the trial court originally during examination in chief, cross examination and re- examination as PW1 on 05.05.2017. 29 documents were produced by the complainant on 19.06.2017. But steps are not taken to get it marked. On 09.03.2018 when PW1 was further cross examined and re-examined at the instance of the accused by recalling him, he failed to depose of the contents of any of the 29 documents which had been produced nine months before. The marking of the documents has objected to by the accused. The trial court without ruling out the objection, marked it and relied on it to convict the accused. The trial court by doing so has committed an illegality. The order of remand passed by the appellate court would grant an additional opportunity to the prosecution which was negligent and thereby granted an opportunity to improve it’s case.

3. Remand is an exception and should not pave way to harrass the accused or to provide an opportunity to the prosecution to fill up the lacunas in their evidence.”

2. It is urged by the learned counsel that by remanding the case for trial, after setting aside the judgment under challenge the appellant was granted with an opportunity to fill up the lacuna that had occurred in his evidence. According to him the complainant had already given evidence declaring his income as Rs.3,00,000/- and the amount allegedly advanced being Rs.54,00,000/- the prosecution could have been thrown aside as unsustainable for want of source of income to advance itself.

3. The argument firstly advanced by the learned counsel was based on Section 386 (b) (i) Cr.P.C. According to him the above provision does not contemplate reversal of the order and remand at the same time but only either of it. According to him the finding is not required to be reversed, if the court has decided to remand the case.

Section 386 is extracted hereunder:

386. Power of the Appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) xxxxxxx (b) in an appeal from a conviction-

(i)reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii) alter the finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

xxxxxxx The learned counsel’s argument is not supported b