IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO.01 OF 2004 Raju Negi S/o Narayan Singh R/o Village Raulkhet, P.S. Koshyan Kutoli, District Nainital at present Kusum Khera Haldwani ……… Appellant Versus State of Uttaranchal & another …… Respondents Dated: April 16, 2009 Sri Amit Kapri, Advocate holding brief of Smt. Pushpa Joshi, learned counsel for the appellant Smt. Mamta Bisht, learned AGA for the State/Respondent Nos.1 & 2. HON. DHARAM VEER, J. This criminal appeal, preferred by the appellant u/s 449 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the order dated 17.12.2003 passed by Additional Sessions Judge/IIIrd F.T.C., Nainital in Special Sessions Trial No.147/1998, State Vs. Chilli. 2. I have heard Sri Amit Kapri, Advocate holding brief of Smt. Pushpa Joshi, learned counsel for the appellant and Smt. Mamta Bisht, learned AGA for the State. Perused the entire material available on file. 3. Brief facts of the case are that in the Special Sessions Trial No.147/98, Chilli was the accused. He absconded during the period of trial due to which notices were issued to the surety u/s 446 Cr.P.C. During this period, record related to the case of the accused lost. After that, in reply to the notice issued against the appellant u/s 446 Cr.P.C. he stated that he was not the surety of the accused Chilli and he has not filed any surety bonds on behalf of the accused Chilli but the court 2 below did not accept his submission. Thereafter the court below passed an order for recovery of the amount Rs.25,000/- against the appellant. Feeling aggrieved by the said order dated 17.12.2003, the appellant has preferred the present appeal before this Court. 4. Sri Amit Kapri, Advocate holding brief of Smt. Pushpa Joshi, learned counsel for the appellant has submitted that he has taken the specific ground before the trial court as well as before this Court that he never stood as surety for the accused Chilli and he has not filed any surety bonds as to the surety of the accused in Special Sessions Trial No.147/1998. I find force in the argument raised by learned counsel for the accused/appellant as the record of the case is not available and it has been lost, hence, at this stage it cannot be held that the appellant was the surety of the accused Chilli in Special Sessions Trial No.147/1998. Also, there is no evidence which can show that the appellant was the surety of the accused Chilli. Hence, in these circumstances, the order dated 17.12.2003 passed by the learned Additional Sessions Judge/IIIrd F.T.C., Nainital, recovering the amount Rs.25,000/- from the appellant, was based on presumption and is not sustainable in the eye of law and is therefore liable to be set aside. 5. Sri Amit Kapri, Advocate holding brief of Smt. Pushpa Joshi, learned counsel for the appellant and Smt. Mamta Bisht, learned AGA for the State have stated that after the record has been lost, the reconstruction of the record is not possible. 6. Sri Amit Kapri, Advocate placed reliance on a judgment rendered by Allahabad High Court in the case 3 of “Aziz Khan Vs. State of U.P.” reported in ACC 1992 (29) 223. In the said judgment, it was held as under:- “Where record has been lost or destroyed and it is not possible to reconstruct the record, it will not be just or proper to direct the retrial of the case if a long gap has elapsed since the commission of the offence. The occurrence had taken place on 15.10.76 i.e. 15 years back and the complete record has not been reconstructed. Applying the principle laid down in the above mentioned authorities, we are of the opinion that the appeal of Aziz Khan should be allowed and his conviction and sentence should be set aside and the government appeal against aquittal of the accused-respondents is liable to be dismissed”. 7. After considering all the facts and circumstances of the case and in view of the judgment of Hon’ble Allahabd High Court (supra), I am of the opinion that the appeal of the appellant-Raju Negi should be allowed. 8. Accordingly, the appeal is allowed. The order dated 17.12.2003 passed by Additional Sessions Judge/IIIrd F.T.C., recovering the amount Rs.25,000/- against the appellant-Raju Negi, is hereby set aside. (Dharam Veer, J.) April 16, 2009 RG