.^: IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR CRIMINAL REVISION N0. | 7-^-^OF 2004 APPLICANT NON-APPLICANTS c B ^' \"C: C'"^. C1,..' 'WB- v^.oA^j^k .(c^y. K, to £>. X. tJ) <^^?[^ Mohammad Jahur, S/o Shri Mohammad Gafur, Aged about 45 years, R/o Baramkela, Police Station Baramkela, Tahsil Saranggarh, District Raigarh, (C.G.) VERS U S 1. State of Chhattisgarh, Through: The District Magistrate, Raigarh, (C.G.j. 2. Grahan Kumar Patel, S/o Shri Subaran, Aged about 56 years, R/o Dabhra, Police Station Baramkela, District Raigarh, (C.G.) CRIMINAL REVISION UNDER SECTION 397 READ WITH SECTION 401yOF THE CODE OF CRIMINAL PROCEDURE^l973. ^! ,/^' 'f.'f ;5 % ^ t^ ^) ;^^ HIGH COURT Of CHHATTiSGASH AT BIL^SPUR ® : HOK'BLE MR. JUSTICB PR1TINKER DIWAKER CS,KSV. N0. 172/2004 Versus MohaiE.naaa .Jatiur State ofC.G. & Another yersus Gralian Kuiaar Patel Stat.e ofC.G. & Anoilier Shri Rakesh Pandev, coiuisel for the applicant 8» Shri H.S.Patel, counsel for the respondeat No.2 ic. Cr.Rev. No. 172/2004, Shri H.S.Patel, counsel for tne applicaut aad Shri Rakesh Paade}', counsel for ihe respondeat I\'0.2 ia Cr.Rev. No. 202/2004. Shri Paakai Shrivastava P.L. for the State. s s f. iA As botb the revisions arc aris.aig frosi the sarae tudsLment aud order, thev are bei&g disposed of bv fbis coiBiuon order. 2. . T'he present revisions sre directed as.Qiii'at the jlldgmeat aiid order dated 28.2.2004 passcd by the First Additioa.al Sessions Judge, Raigarh. iu Cr.A. No. 55/2003 and 58/2003 •cv'hereby reiaitted back fhe inatt.er to fhe trial Court ibr deciduig fhe saiae in accordaace with law. 3- la Cr. Case No. 435/99 bofh the app]ica33.ts namely Mohd. Jah.ur and. Graliaa Kum.ar Patel were prosecuted by ftie learaed Magistrate for the ofi'ence iiiider SectioT.i 40° """-'-'SiJ. (^ ^""tg3: aiid 409/34 of the IPC. After recordme the evidence vide judgment aiid oixler dated 5.4.2003, applicaut Mohd. Jahur was convicted for tiie oflence uader Section 409/34 and applicant Grab.an Kuiaar Patel was convicted for the ofience T-uider Section 409 1PC and sentenced each of fhe.in to undergo RI for one year aiid to pay fine of Rs. 3,000. in default offine to further undereo SI for three m.on&s. 4. The judgment and ord.er ofthe learocd Magistrate was subjected to appeal by both the accused persons by fUia.i separate appeals aud vide impugned order and judgment dated 28.2.2004, while allowuig fiie appeal aad settiiig aside the order offhe Magistrate dated 5.4.2003 leamed appeUate Court has reiaitted back fhe aiatter to the trial Coiu-t for deciding fhe sam.e afresh in accordaace with law. 5. Brief facts of the case are that in tae year betweea 1991-94 applieaat. Mohd. Jahur was workiag as LaEUps Manjager at Service Co-ope3?a.Tive Society, Baraialceia whereas applicanl Grahsiii Kuisiar Patel was working as Luik M&aager. It is aUeged fhat ia between 2.4.93 to 29,11.93, a suin ofRs. 1,49,489.60 was taken as advaiice by applicant Mohd. Jahur and out of which a suin of Rs. 1,04,531.50 was deposited and adjusted agaiast fb.e accouiits. It is aiteged fhat Rs. 44,958.10 ha.ve been inisappropriated/einbezzled by applicant Mohd. Jahui'. Iii fbe written report dated 17.7.98, it is fiirtlier alieged ftiat Mohd. Jahur had inisappropriated the siua ofRs. 11,984.26 (as per Schedule B annexed with tlie ivritten isport) aud has not handed over the chai^e to ftie Supervisor Radheshyaiti. It is also afleged fha.t on 5.8.94 accused Mohd. Jalnir while workiug as Lamns Maaager had showa the loss of Rs. 10.158.60 ia ffae stock as per fhe Schedule 'C' aanexed to tbe written renort but fhe sanie is not correct. It is also aMeged fhat upon verification 2.799 litres of Kerosene oil ajid 10 quintals 86 kgs. of silgar axaounting to Rs. 18,225.30 was also not foizud iu tbe stock and this aaiouct lias also been cm.bezzled by him.. Lilcewise he has further .i8 ^^issr^sssft ^^. "ik 1 ^ em.bezzled the amount of Rs. 9,600 by showing the sale of 3200 litres of kerosene oil iii the naine of one Ramesh Kumar Patel. Thus the total ataount of Rs, 94.926.26 have beera. eEibezzled/'inisappropriaTjed by accused/applicaat Mohd. Jahur. In respect of accused/applicant Gralian Kuniar Patel, it is alleged that he has assisted Mohd. Jaliur in coiuinittnig tlie said offence as he was workmg as Link Maaager. It is alisged fhat the relevaat record was aot shown bv the acc.used at fhe time of audit. Aloag with the chaUaa, writtea report Ex.P/1, audit report Ex.P/2 and the Schedule A, B 85 C 'was also filed by fhe prosecution. It also appears fi~oin tlie record that on 4.11.99 fhe charges were fraiG.ed ouly in respect of tiie amount of Rs. 44,958.10 agaiust fhe applicants and no chai^e whatsoever was frained ia respect of other misappropriatioa/eiiibezzleiiient dcne by the accused persons. 6. The entire trial of the accused uersons was conducted by the leamed Magistrate only on the basis of crinunal breach of trust ni i^lation to tbe aiuount of Rs. 44.958.10 aiid the rest of fhe chsrges aad amount have been coimiletelv ienored bv the trial Court. Even fhe issue No. 1 wMch was feamed tsv ttie trial Court was onlv in respect of Rs. 44.958.10 and the rest of the aUegations as ievelied ia the charge sheet have not been taken iato consideration bv the trial Court. Vide judginent dated 5.4.2003, learEed Magistrate had convicted the accused persons for fhe offence uader Section 409 & 409/34 IPC. However wbile hearing fhe appeal it was observed by the appeUate Court that fhe charge was not framed correctty agaiast fhe accused persons aud out of Rs. 94,926.26 only flie ainoiuit of Rs. 44.958.10 has been considered and the rest of fbe amount under differeat heads which was also entrusted to accused Mohd. Jahiu- has not been considered bv ttie Court below. 7. Contention of Shri Patel and Shri Pandev. counsel for the applicants is fb.at the appellate Court was not jzistified ff'l :l"'°s:%. 'Sjgsg^. i; 'tt'. g »;,- .'' f' ^..y^y' in. remanduig back ffae matter to fhe trial Court and the appeUate Court should have restncted itself to the poiut which was raised iu fhe appeal and should have confined to the cbarge in. respect of the amount of Rs. 44,958. 10 alone. It has been furfher argued that the court below has exceeded in its jurisdiction whUe reinanding back the inatter to the trial Court. It has also been argned bv fhe couiisel for fhe appellants fhat in relation to the sarae traasaction, one niore case was registered against the applicants tor tfae offence under Sections 3 & 7 of the Essential Coiainodities Act and in the said case the applicaats have been acquitted and therefore their conviction in fhe present case by fhe tnal Court is bad. Shn Paadey further submits fbat reinittuig back fhe iiiatter to the trial Court would amount to permit fhe prosecutioa to fulfill fhe lacuna aiid the same is not permissible under fhe law. 8. On the other haiid counsel for the State subinits fhat fhe appeUate Coyrt was fi.iUy justt&ed in reinitting back the inatter to the trial Coiu-t and fhe appeal couid not have beea decided inechanically by the appeBate Court and once fhe charge sheet itself shows fhe cominission of the offence in isspect of various heads, it was tfie duty of fhe appeBate Court to correct fhe error comm.itted bv the trial Court. He further subiiiits that so far as the trial of the accused persons luider the provisions of Essential Coininodides Act is conceraed it was altogefher a different case ia relation to the coiiunission of the offence under the different Act and was only iu respect of the sbortage of kerosene oil aad moreover this poiat was raised before fhe trial Court wbich has been diriy considered ia para 9 of the judgnient by the trial Court. He further submits tfaat in the pi^seat revision fhis Court may not decide ttie case of fhe applicauts on inerits because fhe only question before this Court is whetfaer th.e appeUate Court is right ia reinittuig back ttie case to fhe trial Court or not. It has also been argued tliat it is not a question of fulfiUmg any laciuia because the trial Court has already convicted the applicaats and th.erefore DO •'•^ ^""^:^ -":^;-^. ^•'•.^.•^. :• "^ ;:.^ nght had accnied in lavour of the accused nersons. He subuuts tiiat if some niistake has beea coiainitted bv fhe trial C-ourt then ttie appeUate Court was fiiUv ';ustified iii direcuua tiie trial Court to recfify it aud then to proceed. ;-ie also subniits tbat no prejudice whatsoever has been caused to fhe appUcants aad rather fhey have been given one luore opportunily to prove their innocence before tlie trial C^ourt. 9. I have heard coiinsel for the parti.es aad perused the m.aterial availabie on record niclud'ia.g fhe judgment impugiied. 10. It is apparent froai fhe record fbat there are different aUegations again.st fhe applicants for comTnitting the offence and in a very cateeorical term those ailegations were laentioned ia the report. It is not a case vvhere fhe allegation was lunited to oue mcident only. As pointed out earlier, on several dates the inisappropriation was done by the applicant Mohd. Jahur ia which fhe applicant Gr&haii Kuiaar Patel had also assisted. Considering all fhese points the Court below has done nothing wrong in passing tbe irupugned order. After considering the entire case of tbe prosecution, the appeHate Court has reiaaaded back Ae inatter to the trial Court for correctly fraining the chai^es and then deciding the trial in accordance with law. The appeUate Court was faSy justified in reiiiittiag back the Biatter to the trial Court aad it was fhe duty offhe appeUate Court to correct the error coininitted bv the trial Court. I find no reason to iaterfere witti. fhe well reasoned order passed toy fhe appeHate Coiirt aud ttie Court below is fuUy justified in reiaitting back fhe inatt.er to fhe trial Court for deciding the trial afresh after correctly framiag fhe charges and after considering the entire case of fhe prosecution aad then deciding the sarae in accordance with law. ~^ - \ p^kersNaker \ r" iudge