Crl.Appeal No.1812/2005 is an appeal filed under Sec.374 of the Code of Criminal Procedure Code to challenge the order of acquittal rendered by the Judicial First Class Magistrate's Court-III (Mobile), Ernakulam, in Calendar Case, C.C.No. 8/2003, in relation to the offence under Sec.138 of the Negotiable Instruments Act. The complainant is aggrieved by the acquittal of the accused in that case and has preferred the aforementioned Crl.Appeal No. 1812/2005. It is common ground that the lower court records in this have been destroyed and are not available. It is not disputed by the parties of either side that it is not possible to reconstruct the records. The Judicial First Class Magistrate's Court-III (Mobile), Ernakulam, by letter dated 24.3.2014 has informed the Registry that the entire case records in C.C.No.8/2003 have been destroyed as per order No.D3-4017/2012 dated 21.7.2012 of the Chief Judicial Magistrate, Ernakulam and that the said Magistrate's Court is not in a position to make available the case records in C.C.No. 8/2003. 2. Crl.Appeal No. 123/2005 is also an appeal to challenge the judgment of acquittal rendered by the Additional Sessions Judge (Adhoc-II), Ernakulam, in Crl.Appeal No.1169/2003, whereby the lower appellate court has reversed the judgment rendered by the Judicial First Class Magistrate's Court-III (Mobile), Ernakulam, in Calendar Case, C.C.No. 81/2001. In this case also records have been destroyed and are not available before this Court. The office of the Judicial First Class Magistrate's Court-III (Mobile), Ernakulam, by letter dated 7.10.2014 has informed the Registry that the entire case records in C.C.No. 81/2001 on the file of that court have been destroyed vide order No.D3-4017/2012 dated 27.7.2012 of the Chief Judicial Magistrate, Ernakulam and that the said trial court is not in a position to make available the case records.
3. Sri.Babu Cherukara, learned counsel for the respondents (accused) in the case submits that the reconstruction of the records is not possible.
4. In the case Vishwa Nath and Anr. v. State of U.P. reported in 1985 CRI.L.J.1928, the Allahabad High Court considered the case where the trial court records were found to have been burnt pending appeal against conviction and reconstruction of all the papers was not possible and accordingly, allowed the appeal against conviction and held that only statement of six witnesses and FIR regarding the incident were reconstructed by the complainant from his papers, 15 documents relied on by the accused showing that the witnesses were inimical towards the accused, but friendly with the complainant, statements of three witnesses examined by the defence and those of the accused recorded under Sec. 313 Cr.P.C. could not be reproduced. It was held by the court that under Secs.585(2) and 386 of the Cr.P.C., the appellate court was bound to peruse the record and hear the parties before deciding the appeal and that a re-trial after so long a time was impracticable besides causing prejudice to the accused and accordingly, the appeal was allowed setting aside the conviction and sentence, etc.
5. In the case Prabhat Narain Mehrotra v. State of U.P.
reported in 1985 Cri.L.J.63, the Allahabad High Court dealt with the case of conviction of an accused under Secs. 5(1)(d) and 5(2) of the Prevention of Corruption Act and records of the case were destroyed in Sessions Court and reconstruction of the record was found to be not possible and accordingly, in the appeal, the court acquitted the accused as the appellate court was not in a position to peruse the records for compliance of the mandatory provisions in Sec.386 of the Cr.P.C. and held that the matter cannot be remanded as occurrence relates to 1971-72 and it would be impossible to collect fresh material and try the accused again.
6. In the case Sita Ram and others v. State reported in 1981 Crl.L.J. 65, the Allahabad High Court held that where it is not possible to reconstruct the record, which has been lost or destroyed, it may not be legally permissible for the appellate court to confirm the conviction of the appellant since perusal of the record of the case is one of the essential elements of the hearing of the appeal in terms of Sec.386 of the Cr.P.C. and that if the time lag between the date of the incident and the date on which the appeal comes up for hearing is short, the proper course would be to direct re-trial of the case since witnesses normally would be available and it would not cause undue strain on the memory of the witnesses and that where the matter comes up for consideration after a long gap of years as in the instant case, it would neither be just nor proper to re-direct trial of the case arising out of an appeal challenging the conviction.
7. Crl.Appeal No. 1812/2005 arises out of C.C.No.8/2003 on the file of the Magistrate Court concerned. It relates to alleged dishonour of the cheque in question issued on 2.3.1999. Ext.D-1 document is seen issued on 22.3.1997 and most of the documents in question therein are in relation to years between 1995 and 1997. The complaint in Crl.Appeal No. 123/2005 arises out of Calendar Case, C.C.No.81/2001 on the file of the Magistrate Court concerned and it is in relation to the alleged dishonour of cheque in question said to be issued on 21.6.1998. Ext.D-1 document was issued on 1.1.1999 and most of the prosecution and defence exhibits are also in relation to year 1999 and thereafter. In both these cases, the entire transactions are stated to have occurred during those earlier periods. It is brought to notice that it is not possible to reconstruct the records in any manner. It would be unfair and unjust to order remand or re-trial at this point of time as the entire transactions are of the years between 1997 and 1999. More over, both these Criminal Appeals are challenging the acquittal rendered by the court below concerned. Therefore, this Court is of the considered opinion that it would be unjust and improper to deal with the appeals without the lower court records or to consider the remand or re-trial of these cases at this long distance of time. More over, the cases are involving challenges against acquittal and the innocence of the accused stands bolstered by the impugned judgments of acquittal. On a perusal of the impugned judgments of these cases, this Court of the considered opinion that there are no unreasonable or perverse findings in the said impugned judgments of acquittal. In the circumstances, In these cases this Court is left with no option, but to dismiss the Criminal Appeals. Accordingly, both the Criminal Appeals stand dismissed.
Sd/-
sdk+ ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge