Krishi Upaj Mandi Samiti, Chomu v. Shree Anil Luhadia Ors.), whereby the

2. Smt. Alka Luhadia, 5 Malsisar House, Station Road, Jaipur, Director, Firm M/s P.M. Woodcrafts Pvt. Ltd., A-42, RIICO Inductrial Area, Kaladera district Jaipur.

3. Smt. P.M. Woodcrafts Pvt. Ltd., Registered Office 5 Malsisar House, factor at A-42, RIICO Industrial Area, Kaladera tehsil Jaipur. ----Accused-Respondents For Appellant(s) : Ms. Manju Joshi For Respondent(s) : HON'BLE MR. JUSTICE GANESH RAM MEENA 10/01/2025 Order

1. The present criminal leave to appeal has been filed by the appellant-complainant against the judgment dated 10.03.2014 passed by the Court of learned Judicial Magistrate, First Class, Chomu, District Jaipur in Criminal Regular Case No.328/13 (240/04) (Krishi Upaj Mandi Samiti, Chomu Vs. Shree Anil Luhadia & Ors.), whereby the accused-respondents have been acquitted for offence under Section 28(2) of the Rajasthan Agricultural Produce Markets Act, 1961. [2025:RJ-JP:1691] (2 of 5) [CRLLA-126/2014]

2. So as to consider the criminal leave to appeal on its merits, the Court vide order dated 27.02.2018, ordered to call for the record of the learned trial Court.

3. Vide letter dated 23.08.2024 sent by the Civil Judge and Judicial Magistrate, Chomu, District Jaipur to the Registrar (Judicial), Rajasthan High Court Bench, Jaipur, it was intimated that the record of the learned trial Court of Criminal Case No.328/13 (240/04) has been weeded out on 25.05.2018.

4. The questions arose before the Hon'ble Apex Court; One, whether, in absence of record of the Court of Trial, the appellate Court could have upheld the conviction and enhanced the quantum of fine? And Two, whether, given the language employed under Section 385 of the Code of Criminal Procedure, 1973, the present situation constitutes a violation of the accused's fundamental rights under Article 21 of the Constitution of India?

5. The said issue was considered by the Hon'ble Apex Court in case of "Jitendra Kumar Rode Vs. Union of India" passed in Criminal Appeal No.......... of 2023 arising out of Special Leave Petition (CRL.) No.2063 of 2023, decided on

24.04.2023.

6. The Hon'ble Apex Court after taking into consideration the various pronouncements, has observed as under:- "31. In the present case, the impugned judgment of the High Court records the statement of the CBI that the records have “got lost”. The “reconstructed” record consists of the following: i. FIR of RC 18(A)/95LKO; ii. Complaint dated 03.05.1995 of Sri J.P.N. Upadhyay, CIT, Varanasi (2 pages); iii. Photocopy of S.F.-II dated 24.03.1995 (one page); iv. Pretrap memorandum dated 3.5.95 (4 pages); [2025:RJ-JP:1691] (3 of 5) [CRLLA-126/2014] v. Recovery memo dated 3.5.1995 (5 pages); vi. Search list dated 3.5.95 (5 pages); vii. One file containing charge-sheet (SF-II) of Sri JPN Upadhyay and Notesheet. (Pages 1 to 6 & Notesheet PP-2); ix. Site plan dated 3.5.95 (1 sheet); x. Misc. Papers containing Draft charge-sheet etc. (7 sheets); xi. Sanction order dated 28.12.95. Sub-Section, 2 of Section 385, requires that the parties are heard in light of the records received by the Court. The documents undoubtedly need to include the essential documents necessary to properly appreciate the appeal on its merits. Even the depositions of the witnesses, both prosecution and defence, have not been reconstructed and are not available for the Court. This position of disposal of an appeal on merits being only after perusal of record, has been held by a three- Judge Bench in Bani Singh (supra).

32. The Court below, in our considered view, by taking a mutually contradictory view, proceeded to decide the appeal on merits sentencing the accused, forgetting that the challenge was also for conviction. And yet did not deal with the merits of the appeal, laying specific challenge to the judgment of conviction. The whole approach is illegal and erroneous. Firstly, it is observed that the record was missing, and then it casts the onus to produce the same on the Appellant.

33. In light of the abovementioned discussion, the Accused, in appeal, has a right to have the record perused by the Appellate Court and, therefore, upholding a conviction by merely having noted that the counsel for the accused not having the record at the time of filing the appeal is “doubtful” and that “no one can believe” the appeal would have been filed without perusing the record, as observed by the High Court is not correct. The job of the Court of Appeal is not to depend on the lower Court's judgment to uphold the conviction but, based on the record available before it duly called from the Trial Court and the arguments advanced before it, to come to a conclusion thereon.

34. In the facts at hand, the alleged offence in question was committed on 21.3.1995, and the judgment of the Trial Court was delivered on 7.12.1999. More than 28 years have passed since the commission of the offence. As already indicated, the relevant Trial Court record has not been able to be reconstructed, despite the efforts of the courts below. Hence, in our considered view, as discussed above, ordering a retrial is not in the interest of justice and will not serve any fruitful purpose. The time elapsed must be taken into consideration by the Court, and we may stress on that, only after taking due note of and taking steps to abide by the warning issued by this [2025:RJ-JP:1691] (4 of 5) [CRLLA-126/2014] Court in Abhai Rj Singh (supra), as was correctly done in Sita Ram (supra). Conclusions

35. Protection of the rights under Article 21 entails protection of liberty from any restriction thereupon in the absence of fair legal procedure. Fair legal procedure includes the opportunity for the person filing an appeal to question the conclusions drawn by the trial court. The same can only be done when the record is available with the Court of Appeal. That is the mandate of Section 385 of the CrPC. Therefore, in the considered view of this Court, it is not within prudence to lay down a straightjacket formula, we hold that non- compliance with the mandate of the section, in certain cases contingent upon specific facts and circumstances of the case, would result in a violation of Article 21 of the Constitution of India, which we find it to be so in the instant case.

36. The language of Section 385 shows that the Court sitting in appeal governed thereby is required to call for the records of the case from the concerned Court below. The same is an obligation, power coupled with a duty, and only after the perusal of such records would an appeal be decided.

37. In the view of the aforesaid, the appeal is allowed. The impugned judgment and the conviction dated 07.12.1999 passed by Special Judge (Prevention of Corruption Act, 1988), Lucknow, in Case No.7/1996 is set aside, subject thereof, is set aside."

7. Though, the present criminal leave to appeal is not against the conviction, however, same is against the acquittal of the accused-respondents. The procedure of hearing the criminal appeal against the order of acquittal and against the order of conviction, is the same. Hence, the criminal appeal on both the grounds of conviction and acquittal, could be considered on merits after perusing the record of the learned trial Court, in view of the requirement under Section 385 of of Cr.P.C.

8. Since, as per the office report/letters, the record of the learned trial Court has been weeded out and is not available, hence, hearing and passing any order in the present criminal leave to appeal without record, would frustrate the right of the parties. [2025:RJ-JP:1691] (5 of 5) [CRLLA-126/2014]

9. Further, on perusal of the order-sheets of the present criminal leave to appeal, it is revealed that the present criminal leave to appeal was filed on 08.05.2014 against the order dated

10.03.2014 and same was lying with the Registry with the defect. When the appellant-complainant did not cure the defect for about three years, then the Court passed peremptory order dated

10.04.2017, allowing two weeks' time to the appellant- complainant to cure the defect and, thereafter, he removed the defect on 26.04.2017. The aforesaid facts clearly speak that the appellant-complainant is not serious in pursuing the present criminal leave to appeal.

10. Taking into consideration the above facts, this Court, feels that in absence of the record of the learned trial Court and in view of the observations of the Hon'ble Apex Court in case of Jitendra Kumar Rode (supra), no order on criminal leave to appeal can be passed on merits

11. Accordingly, the present criminal leave to appeal is dismissed. ARTI SHARMA /92 (GANESH RAM MEENA),J