BINOY THOMAS v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR** **MONDAY, THE 20[TH] DAY OF NOVEMBER 2023 / 29TH KARTHIKA, 1945 CRL.REV.PET NO. 397 OF 2018** **AGAINST THE JUDGMENT DATED 30.11.2017 IN CRA 335/2008 OF ADDITIONAL SESIONS COURT - II, THALASSERY AND THE JUDGMENT DATED 23.07.2008 IN CC 62/2005 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE, THALASSERY** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **BINOY THOMAS AGED 50 YEARS, S/O. THOMAS, OMATHADATHIL HOUSE, PATHAM PARA, NADUVIL AMSOM, KANNUR-670582.** **BY ADV SRI.P.B.AJOY** ## **RESPONDENT/RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY SHO ALOKKODE POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** **BY SMT.SEENA C., PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 20.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.397 of 2018 ## **P.G. AJITHKUMAR, J.** **---------------------------------------------------** **Crl.R.P.No. 397 of 2018 ---------------------------------------------------Dated this the 20[th] day of November, 2023** ## **O R D E R** The petitioner is the sole accused in C.C.No.62 of 2005 on the files of the Additional Chief Judicial Magistrate, Thalassery. He was tried on the charges for the offences punishable under Sections 403, 406 and 409 of the Indian Penal Code, 1860 (IPC) and under Section 29 of the Kerala Co-operative Societies Act, 1969. 2. The trial court convicted the petitioner for the offence under Section 408 of the Indian Penal Code and acquitted him on the other offences. He preferred an appeal. The Appellate Court set aside the judgment of conviction and order of sentence, and remanded the case to the trial court. The petitioner in his revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code), questions the correctness, legality and propriety of the said order of remand. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3 Crl.R.P.No.397 of 2018 4. The allegations against the petitioner are the following: He was the Secretary of Pathampara Milk Co-operative Society, a society registered under the Kerala Co-operative Societies Act. On 16.05.1996, 50 sacks of cattle feed were received in the Society from the Kerala Co-operative Milk Marketing Federation at Palakkad. The petitioner failed to enter receipt of the same in the relevant registers and misappropriated the same. Further, the petitioner misappropriated an amount of Rs.6,315/- which he had collected from the members of the Society. 5. At the trial, PWs.1 to 8 were examined and Exts.P1 to P17 were marked. After examination of the petitioner under Section 313 of the Code, he got examined as defence witness also. It is after considering the said evidence, which was some what bulky, the trial court found the petitioner guilty of the offence under Section 408 of the IPC. 6. The appellate court re-appreciated the evidence in detail. On finding that there was substance on the contention of the appellant that the evidence was insufficient to prove that it was he who made the entries in question and, in fact, had 4 Crl.R.P.No.397 of 2018 received the articles allegedly misappropriated, reversed the findings of the trial court leading to his conviction. The findings of the Appellate Court in paragraph No.38 reads; ''38. A careful analysis of the evidence adduced leads me to the conclusion that the evidence adduced is not sufficient to bring out the above crucial aspects required to sustain the charge u/s. 408 of IPC. It is my view that prosecution ought to have adduced direct evidence to prove that it was the accused and none else who made the controversial entries in the registers of the society and who received the loads of cattle feed that were sent to the society. It was without taking into consideration the above relevant aspects that the court below entered into a finding of guilty.'' 7. The Appellate Court, after finding that the evidence was totally insufficient to prove that it was the accused and no one else who made the disputed entries in the registers of the Society, set aside the judgment of conviction and the order of sentence. The Appellate Court observing that the offence involved was serious in nature, another opportunity should have been given to the prosecution to adduce further evidence to bring out sufficient materials enabling the court to enter into a finding regarding the allegation of misappropriation against the 5 Crl.R.P.No.397 of 2018 petitioner. The Appellate Court remanded the matter to the trial court for that purpose. The operative part of the appellate judgment reads thus; ''42. For the reasons above stated, the appeal is allowed as follows. 1) The finding of guilty arrived at by the court below and conviction and sentence imposed by the court below on the appellant are set aside. 2) The case is remanded to the court below for fresh consideration and disposal. 3) The court below will afford opportunity to the prosecution to adduce further evidence to bring out sufficient materials so that the court below can decide as to whether the appellant/accused committed criminal breach of trust. 4) The accused also will be given opportunity to adduce further evidence, if he so desires. 5) The appellant/accused will appear before the court below on 07.01.2018 without further notice 6) The court below will take steps for expeditious disposal of the case.'' 8. The learned counsel for the petitioner would submit that although the Appellate Court has powers under Section 386(b) of the Code to order retrial, that power can be exercised in limited circumstances only. The parameters and principles governing ambit of such powers as laid down by the Apex Court in **Ajay Kumar** 6 Crl.R.P.No.397 of 2018 ## **Ghoshal and others v. State of Bihar and another** [ **(2017) 12** **SCC 699]** and a few other decisions have been highlighted in order to fortify his contentions that the remand in this case is against the provisions of Section 386(b) of the Code. 9. As held in **State of M.P. v. Bhooraji [(2001) 7 SCC 679]** a _denovo_ trial should be the last resort and that too only when such a course becomes so desperately indispensable and also that it should be limited to the extreme exigency to avert a failure of justice. 10. The powers of the Appellate Court are contained in Section 386 of the Code. In an appeal from a conviction, an Appellate Court can exercise power to order retrial under Section 386(b), which is to the following effect: “(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.” 7 Crl.R.P.No.397 of 2018 ## 11. In **Nasib Singh and others v. State of Punjab and** **another [(2022) 2 SCC 89]** the Apex Court emphasized that a retrial would not be ordered unless the Appellate Court is satisfied that: (i) The Court trying the proceeding had no jurisdiction; (ii) The trial was vitiated by serious illegalities and irregularities or on account of a misconception of the nature of the proceedings as a result of which no real trial was conducted; or (iii) The prosecutor or an accused was for reasons beyond their control prevented from leading or tendering evidence material to the charge and that in the interest of justice, the Appellate Court considers it appropriate to order a retrial. 12. This is a case where a full-fledged trial without occurring any procedural irregularities had taken place. Elaborate and bulky evidence was brought on record. As can be seen from the appellate judgment, the prosecution has no plea that another opportunity for adducing evidence should be given to it, since there occurred a denial of justice or ommission on its part to bring in any relevant evidence. In such a situation, only for the reason that the offence is serious, the Appellate Court cannot invoke the provisions of Section 386(b)(1) of the Code to order a retrial of the case. 8 Crl.R.P.No.397 of 2018 13. If, as directed by the Appellate Court, another opportunity is to be given to the prosecution to adduce further evidence, inevitably, there should be collection of additional materials by the prosecuting agency and placing of such materials before that court. Such a course can be had only if there is a further investigation and supplemental final report. When the trial was concluded through a duly constituted trial and the trial culminated in its local conclusion, the Appellate Court at this belated stage is not empowered to allow the prosecution to have a further investigation and produce further evidence for the reason that the evidence already adduced is insufficient to prove the guilt. 14. The fundamental principle of criminal law is that if there is doubt in the case of the prosecution, that benefit should be given to the accused. Here, the Appellate Court categorically found that the evidence was totally insufficient to establish the guilt on the part of the accused. The Appellate Court did not say at all that there occurred any kind of irregularity or illegality in the procedure or any denial of opportunity for the prosecution. 9 Crl.R.P.No.397 of 2018 15. In such circumstances, the view taken by the Appellate Court that the prosecution should be given a further opportunity to bring in sufficient materials to establish the guilt of the accused is undoubtedly beyond the powers invested to that court under Section 386(b) of the Code. Hence, the order remanding the case to the trial court is set aside. In the light of the definite finding entered into by the Appellate Court that the prosecution failed to prove the charge under Section 408 of the IPC, for which alone the petitioner was convicted by the trial court, he is entitled to be acquitted. Accordingly, this revision petition is allowed. The judgment dated 30.11.2017 of the Sessions Court, Thalassery in Criminal Appeal No.335 of 2008 and that of the Additional Chief Judicial Magistrate, Thalassery in C.C.No.62 of 2005 are set aside. The petitioner is acquitted and set at liberty. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dxy/dkr