V.B. Raju, J.
1. These revision applications are in respect of an acquittal of one Khoja Habibhai Zaverbhai who was charged under Section 480 Indian Penal Code. The learned Judicial Magistrate First Class Radhanpur acquitted him in Criminal Case No. 49 of 1959 and the Revision application was filed before the Bombay High Court which was No. 2013 of 1959. In that application it was ordered by the High Court of Bombay that a revision application should be filed before the Sessions Judge and the matter was sent back. A revision application had accordingly been filed before the Sessions Judge who has however dismissed it. The complainant has therefore made another application before the Gujarat High Court which is No. 254 of 1960.
2. In both these petitions the prayer is that the acquittal of opponent No. 1 under Section 408 Indian Penal Code should be set aside and he should be convicted. Session Judge agreed with the finding of the trying Magistrate that the accused was a partner of the complainant. But he was of the view that there was not a shadow of doubt that the finding of acquittal which was recorded by the learned Magistrate was wrong and that the cause ought to have ended in the conviction of the accused under Section 408 I.P. Code. The Learned Counsel for the applicant has conceded that in view of Sub-section (4) of Section 439 Criminal Procedure Code it is not open to the High Court under that section to convert a finding of acquittal into one of conviction. His prayer is merely therefore that the High Court should order a retrial. He has however conceded that there is no irregularity or defect in the trial. But his contention is that although there is no irregularity or defect in the trial the order acquitting the accused is a perverse one and a retrial should be ordered on that ground. In view of the fact that there is no irregularity or defect in the trial it would be most irregular for the High Court to order a retrial. No authority is pointed out for this proposition that even if there is no irregularity or defect in the trial a retrial may be ordered may however refer to Motiram v. Emperor : AIR1936All758 where the contrary proposition was laid down as follows:
An Appellate Court has a power lo order a re-trial but it can pass such an order only upon proper grounds such as the ground that the original trial has been vitiated by some irregularity An Appellate Court is not entitled to order a re-trial merely because it disagrees with the finding of the lower Court that the accused had not committed the more serious offence but a lesser offence.
3. The prayer of the Learned Counsel for the applicant that the High Court should order a re-trial in this case is therefore rejected and Criminal Revision Application No. 22 of 1960 is rejected. Criminal Revision Application No. 254 of 1960 is rejected summarily.