V.P. Mathur, J.
1. This appeal was directed against the order passed by Sri D.P. Srivastava, VIIIth Additional Sessions Judge, Bareilly, on 24-11-1978. The learned Judge was trying a special case and as a result of his assessment of the evidence he convicted the appellant on the charges under Sections 5(l)(d) and 5(2) of the Prevention of Corruption Act and sentenced him to one year's R. I. and a fine of Rs. 500/- and in default of payment of fine three months further R. I. was awarded.
2. When the record of this case was sent for, a report was received that it had been destroyed as a result of fire and was not available. Then order was passed by this Court on 29-7-1983 directing the Sessions Judge Bareilly to reconstruct the record and send the same to this Court and if that was not possible then to send a report to that effect. The learned Sessions Judge has reported that reconstruction is not possible. Under these circumstances the case came up for hearing before me.
3. The legal position is very clear, in new of Section 386, Cr.PC it is essential that when an appeal is decided the Court makes perusal of the record and when the record is not available, that perusal cannot be made and compliance of Section 386, Cr.PC is not possible. Then the court will be left with no option but to direct acquittal of the appellant in the absence of the record.
4. Even a remand is not possible because the occurrence relates to the year 1971-72 and when original documents were not available, it would be impossible to collect fresh material and try the accused again.
5. In the result, the appeal is allowed. The order of conviction of the appellant is set aside. The appellant is on bail and he need not surrender. His bail bonds and sureties are discharged. In case the amount of fine has been realised, it shall be refunded to the appellant otherwise it need not be paid.