S.G. Shah JUDGMENT
S.G. Shah, J.
1. Heard learned advocate Mr. M.M. Tirmizi for the Applicant and learned Additional Public Prosecutor Mr. Manan Mehta for the Respondent - State. Perused the record.
2. The Applicant has challenged the judgment and order dated 6.4.2017 by the learned Sessions Court No. 26, Ahmedabad in Criminal Revision Application No. 384 of 2014 whereby the learned Sessions Court has reversed the judgment of acquittal in favour of the Applicant by the learned 5th Additional Chief Metropolitan Magistrate in Criminal Case No. 902 of 2009 dated 12.4.2014. The Applicant is facing charges under Sections 406, 409, 420, 467, 468, 471, 201 and 114 of Indian Penal Code (for Short "IPC") for siphoning off an amount of Rs. 4,00,000/- with the help of forged Cheque.
3. The Trial Court has acquitted the Applicant so also co-accused observing that when amount of Cheque was released after following due process of honoring Cheque by the Bank, the Applicant cannot be convicted. With due respect, there is material irregularity which amounts to illegality in such observation, inasmuch as, if forged cheques are utilized and if at all, the Officer who has cleared such Cheque could not identify the forgery, it cannot be said that accused is not guilty. If there is positive evidence that the concerned Cheques were not signed by the account holder or in other words, the Cheques are forged then, if there is no criminal liability of the Officer who had cleared the Cheque then at least he is certainly negligent in honoring such Cheque but such negligence may not be considered as innocence of the accused, if other evidence is confirming the commission of offences by the accused as alleged in the chargesheet. Therefore, when State has challenged the order of acquittal before the Appellate Court and when matter was heard before the Appellate Court, the Appellate Court being Sessions Court has found that at-least two pages of deposition of key witness being prosecution witness No. 19 namely; Mr. Afzalkhan Akbarkhan Pathan at Exh. 147 are missing; initially, learned Sessions Judge has tried to get proper copy of such evidence and when it could not succeed in such exercise, the Court has also tried to reconstruct such evidence. However on failure to reconstruct the evidence; both by the Trial Court and by both the advocates; the Sessions Court has vide impugned judgment and order dated 6.4.2017 while reversing the judgment of acquittal, ordered retrial of the case by Metropolitan Magistrate as permissible under Section 386 of the Code of Criminal Procedure, 1973 ('Code' for short) and remanded back the matter to the Trial Court with a direction that deposition of Afzalkhan Akbarkhan Pathan be recorded afresh. Sessions Court has reason to say so because while examining the Record and Proceedings, the Sessions Court has found that even statement of the accused under Section 313 is not properly recorded with reference to the deposition of such witness and few questions are missing in the link and, therefore, there is reason to believe that even Trial Court has decided the matter without referring the full deposition of such witness.
4. At this stage, relevant portion of Section 386 of the Code needs to be recollected, which reads as under: -
"386. Power of the Appellate Court. After perusing such record and hearing the........