1 2025:CGHC:15243 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 232 of 2019 1 - Jaswant Singh S/o Late Raghuveer Singh Aged About 40 Years R/o Sector-1, Avenue-C, Police Station Bhiali, Bhatthi, District Durg Chhattisgarh, District : Durg, Chhattisgarh ...Applicant(s) versus 1 - State Of Chhattisgarh Through The District Magistrate, Durg Chhattisgarh, District : Durg, Chhattisgarh 2 - Sanjay Kumar Singh S/o Late S. B. Singh Aged About 42 Years R/o Village Khaga, Fatehpur District Fatehpur U. P. At Present Address Charoda, Government Railway Quater 183-A, Zone-2, Police Station Bhilai-3, District Durg Chhattisgarh, District : Durg, Chhattisgarh ---Respondents (Cause Title taken from Case Information System) For applicants : Mr. B.P. Singh, Advocate. For Respondent-State : Ms. Binu Sharma, Panel Lawyer. Hon'ble Mr. Arvind Kumar Verma, Judge Order on Board 01/04/2025 1. This revision is directed against the impugned judgment dated 28.12.2018 passed in Criminal Appeal No. 235/2018 by the learned First Additional Session Judge Durg (C.G.), arising out of the order dated 21.06.2011 in Criminal Case No. 210/2011 passed by the learned Judicial Magistrate First 2 Class Durg (C.G.) whereby the applicants were prosecuted for the offences punishable under section 420, 467, 468, 471/34 of IPC registered at Police Station in connection with Crime No. 89/2009, and after trial they were acquitted from the charges after due process of trial. Thereafter, the acquittal order of the applicants was challenged by the respondent No. 1 by filling the appeal under section 378 of Cr.P.C. before the court of Session and the learned First Additional Session Judge allowed the appeal and set aside the judgment of acquittal passed by the learned Magistrate and further directed that trial Court to ensure the production of report of handwriting expert along with all the relevant documents. 2. Facts of the present case are that as per prosecution case, on 29- 30.05.2009, the accused applicant and non applicant No. 2 prepared forged cheques bearing cheque No. 397901 of Rs. 8,50,0000/-, cheque No. 397902 of Rs. 2,90,000/-, cheque No. 397903 of Rs. 6,50,000/- and cheque No. 397904 of Rs. 4,50,000/- knowing that the same is forged and fabricated documents, presented it before UCO Bank, Section- 1 Branch Bhilai for disbursement and obtained the amount by way of cheating and the amount was distributed between them. 3. Thereafter report was made before the Police and the offence under Section 420, 467, 468, 471, 472/34 of IPC were registered against the accused and the charge-sheet was submitted before the Court of learned Judicial Magistrate First Class, Durg where the criminal Case No. 210/2011 was registered against the accused. After completion of trial, vide judgment dated 21.06.2011, the learned trial Court has acquitted the accused from the aforesaid offences. Being aggrieved by the judgment of acquittal dated 21.06.2011, the respondent/State preferred an appeal under Section 372 of Cr.P.C. before the learned First Additional Sessions Judge Durg. Vide impugned order dated 28.12.2018, the learned appellate court has 3 entertained the appeal whereby set aside the judgment of acquittal passed by the learned Magistrate and further directed the trial Court to ensure the production of report of handwriting expert along with all relevant documents pending for its opinion. Hence this criminal revision. 4. Learned counsel for the applicant submits that the learned appellant court has exceeded its jurisdiction in entertaining the appeal preferred by the respondent/state against the judgment of acquittal passed by the learned JMFC Durg. The appeal against an order of acquittal is provided only before the High Court under Section 372 of Cr.P.C. that too with special leave to appeal as provided under Section Sub-Section 3 of Section 378 of Cr.P.C. 5. The learned counsel for the applicant further submits that learned appellate Court, while remanding the case, has directed the trial Court to ensure the production of report of handwriting expert along with all relevant documents pending for its opinion, whereas the prosecution had sufficient opportunity before the trial Court to prove the said fact and by way of remand, the state cannot be given an opportunity to rectify their lacuna and the applicant is facing the trial as well as appeal for about 15 years. Sub-Section (4) of Section 378 of the Code provides remedy of appeal after grant of leave to appeal to the complainant. Sub-section (4) of Section 378 of the Code reads as under:- “4. If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.” 6. Learned counsel for the appellant further submits that the remand is not permissible to fill up the lacuna by the prosecution and it is settled principle of law that the benefit of doubt goes to accused but here the learned 4 appellate court remanded the case and directed to the trial Court to ensure the production of report of handwriting expert along with all relevant documents pending for its opinion, which is not permissible under the law. 7. In support of his contention, learned counsel for applicant placed reliance upon a judgment of the Supreme Court in the case of Nasib Singh Vs. State of Punjab and Another reported in 2022 (2) SCC 89. Learned counsel for applicant also relied upon a judgment of the Supreme Court in the case of Ajay Kumar Ghoshal Vs. State of Bihar and Another reported in 2017 (12) SCC 699. Also in the case of Harishankar Prasad Sahu vs State of Chhattisgarh passed in CRR No. 94/2014 and also in the case of Nadakerappa since Deceased by Lrs. And Ors. vs. Pillamma since Deceased by Lrs. And Others reported in 2022 SCC OnLine SC 387. 8. Per Contra learned State Counsel submits that the documentary evidence i.e. handwriting expert report, is a very vital evidence to make proper adjudication of the case in hand. It is to mention here that while filing chargesheet, the prosecution has filed the receipt of State Examiner of Questioned Document, Government of Chhattisgarh, Raipur, which shows that during investigation on 07/08/2009 the sample of handwriting of both accused persons were sent to the office. The prosecution received positive handwriting expert report. Then, without any delay, immediately the application U/s 391 was filed. 9. Learned State Counsel submits that the Hon'ble Supreme Court in the case of Zahira Habibulla H. Sheikh, the Supreme Court has dealt with the scope of Section 391 and the powers of the Appellate Court to consider additional evidence. It was observed that the object of Section 391 is to sub-serve the ends of justice and get the truth. Section 391 is salutary provision which provides the Courts with the power to effectively decide an appeal. Though 5 Section 386 envisages the normal and ordinary manner and method of disposal of an appeal, yet it does not and cannot be said to exhaustively enumerate the modes by which alone the Court can deal with an appeal Section, Section 391 of the Cr.P.C. is one such exception to the ordinary rule and if the appellate Court considers additional evidence to be necessary, the provisions in Section 386 and Section 391 have to be harmoniously considered to enable the appeal to be considered and disposed of in the light of the additional evidence as well. For this purpose it is open to the appellate Court to call for further evidence before the appeal is disposed of. The provisions has to be exercised with great care. The primary object of Section 391 is the prevention of guilty man's Escape through some careless or ignorant proceedings before the Court or vindication of an innocent person in the said case. 10. Learned State Counsel also relied upon a decision of the Hon’ble Supreme Court in the matter of Girja Prasad (Dead) By Lrs. Vs. State of M.P., in a decision as reported in (2007) 7 SCC 625, wherein the Apex Court has in paragraph 28 observed as under:- “28. Regarding setting aside acquittal by the High Court, the learned counsel for the appellant relied upon Kunju Muhammed v. State of Kerala, Kashi Ram v. State of M.P and Meena v. State of Maharashtra. In our opinion, the law is well settled. An appeal against acquittal is also an appeal underthe Code and an Appellate Court has every power to re-appreciate, review and reconsider the evidence as a whole before it. It is, no doubt, true that there is presumption of innocence in favour of the accused and that presumption is reinforced by an order of acquittal recorded by the Trial Court. But that is not the end of the matter. It is for the Appellate Court to keep in view the relevant principles of law, to re-appreciate and reweigh the evidence as a whole and to come to its own conclusion on such evidence in consonance with the principles of criminal jurisprudence.” 11. It is humbly submitted by the State Counsel that, the impugned order passed by the learned Court below, is proper, legal, strictly in accordance with law 6 and within the jurisdiction and there is no infirmity or illegality in the same, which does not warrant any interference. 12. I have learned counsel for the respective parties and perused the record and orders of the court below. 13. Factual matrix of the case are that on 29-30.05.2009, the accused applicant and non applicant No. 2 prepared forged cheques bearing cheque No. 397901 of Rs. 8,50,0000/-, cheque No. 397902 of Rs. 2,90,000/-, cheque No. 397903 of Rs. 6,50,000/- and cheque No. 397904 of Rs. 4,50,000/- knowing that the same is forged and fabricated documents, presented it before UCO Bank, Section- 1 Branch Bhilai for disbursement and obtained the amount by way of cheating and the amount was distributed between them. Thereafter report was made before the Police and the offence under Section 420, 467, 468, 471, 472/34 of IPC were registered against the accused and the charge- sheet was submitted before the Court of learned Judicial Magistrate First Class, Durg where the criminal Case No. 210/2011 was registered against the accused. After completion of trial, vide judgment dated 21.06.2011, the learned trial Court has acquitted the accused from the aforesaid offences. Being aggrieved by the judgment of acquittal dated 21.06.2011, the respondent/State preferred an appeal under Section 372 of Cr.P.C. before the learned First Additional Sessions Judge Durg. Vide impugned order dated 28.12.2018, the learned appellate court has entertained the appeal whereby set aside the judgment of acquittal passed by the learned Magistrate and further directed the trial Court to ensure the production of report of handwriting expert along with all relevant documents pending for its opinion. 14. On perusal of the records, this Court found that learned trial Court has acquitted the accused under Sections 420, 467, 468, 471, 472/34 of IPC. The State has assailed the judgment passed by the Trial Court before the Appellant Court on 21.06.2021. After filing of appeal, more than 5 years has 7 been lapsed, then the prosecution has filed application under Section 391 of Cr.P.C., before the Appellate Court for taking document on record i.e. hand writing expert report and learned Appellate Court has allowed the application on the ground that it is a heinous offence and the trial Court wrongly acquitted the accused on the ground that the prosecution failed to produce the handwriting expert report before the trial Court and therefore the learned Appellate Court has remitted back the matter to the trial court for retiral of the case. 15.The Hon’ble Supreme Court in the case of Nasib Singh Vs. State of Punjab and Another reported in 2022 (2) SCC 89 has held in Paragraph 33 as under:- “33. The principles that emerge from the decisions of this Court on retrial can be formulated as under: (i) The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice; (ii) Mere lapses in the investigation are not sufficient to warrant a direction for re- trial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed; (iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence; (iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process; (v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and (vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice : a) The trial court has proceeded with the trial in the absence of jurisdiction; b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.” 8 16. The Supreme Court also in the case of Ajay Kumar Ghoshal Vs. State of Bihar and Another reported in 2017 (12) SCC 699 has held in Paragraph 12 as under:- 17. “De novo’ trial means a “new trial” ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold ‘de novo’ trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: 18. “ An order for retrial of a criminal case is made in exceptional cases, and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the Prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge, and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. An order of re-trial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.” 19. From the said judgment of the Hon’ble Supreme Court, it is evidently clear that the High Court could have remanded the matter only in very exceptional case where it is found that there is a defect of procedure or a manifest error of law resulting a flagrant miscarriage of justice is taken place in the course of the trial Court deciding the case. 20. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Cr.P.C. That is clear from the bare language of Section 386(b) of Cr.P.C. Though such power exists, it should not be exercised in a routine manner. A ‘de novo 9 trial’ or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appellate court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked. 21. It is crystal clear that the Appellate Court could not have and does not have the power to remand the case for retrial so as to fill up the lacuna on the part of the prosecution and trial Court more particularly when the judgment under Challenge before the Appellate Court was against the acquittal. Here is not a situation that the trial Court has proceeded with the trial in the absence jurisdiction and it is also not a situation that the trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings and it is not a case that the prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade. It is pertinent to mention herein that “Denova” trial means a “new trial” ordered by an Appellate Court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. In the instant case, the prosecution has failed to produce the FSL report / handwriting expert report before the trial Court during the course of trial. Learned the trial Court has acquitted the accused person on 21.06.2011. The prosecution has filed appeal before the Appellant Court and after lapse of 5 years, prosecution has filed application U/s 391 of CrPC before the Appellant Court and the Appellant Court has allowed the application. It is not an exceptional case, therefore records reveals that there is illegality committed by the appellate 10 Court. After analyzing all the facts, this Court finds it appropriate to set aside the impugned order dated 28.12.2018 passed in Criminal Appeal No. 235/2018 and order of the trial Court dated 21.06.2011 is restored. 22. Accordingly, present Criminal Revision is allowed. 23. Let a copy of this order and the original records be transmitted to the court concerned forthwith for necessary information and compliance. Sd/- (Arvind Kumar Verma) Judge Jyoti Digitally signed by JYOTI JHA Date: 2025.05.15 12:52:27 +0530