HIGH COURT OF UTTARAKHAND AT NAINITAL Govt. Appeal No.185 of 2001 (Old No.73 of 1998) The State. … Appellant Versus Dinesh Kumar Saxena S/o Brahm Swaroop Saxena P.S. Sahi, District Bareilly. At present Wireless Operator, Moradabad. … Respondent Sri M.A. Khan, learned Brief Holder for the Appellant/State, None for the respondent. Dated: September 10, 2008 HON. DHARAM VEER, J. Sri M.A. Khan, learned Brief Holder for the appellant/state is present. None is present for the respondent. 2. The present appeal has been preferred u/s 378 of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.) against the judgment and order dated 11.12.1997 passed by the Addl. Chief Judicial Magistrate, Roorkee in case no. 573/1991 State vs. Dinesh Saxena, whereby the learned Addl. Chief Judicial Magistrate, Roorkee has acquitted the respondent for the offences punishable u/s 493, 496, 420 I.P.C. 3. On 19.06.2008, this Court summoned the record of the lower court. In compliance of that order the Officer-in- Charge Addl. Chief Judicial Magistrate, Roorkee vide letter dated 24.07.2008, on the basis of the report of Officer-in- Charge, Record Room (Criminal), District Court, Saharanpur dated 07.07.2008, has informed that the record of the case no. 573/1991 State vs. Dinesh Saxena (decided on 11.12.1997) has been weeded out as per rules. In these circumstances, Sri M.A. Khan, learned Brief Holder for the appellant/State has submitted that after passing of the impugned judgment and 2 order dated 11.12.1997 which is under challenge, now the period of more than ten years has expired. It is further submitted that now the reconstruction of the record or retrial is also not possible. In a judgment rendered by Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in ACC 1992 (29) 223, 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 15.10.1976 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 acquittal of accused- respondents is liable to be dismissed.” 4. In view of the above, the appeal preferred by the appellant/State stands dismissed. The judgment and order dated 11.12.1997 passed by the Addl. Chief Judicial Magistrte, Roorkee is hereby confirmed. (Dharam Veer, J.) 10.09.2008 NCM: