B.K. Mukherjea, J.
1. This is a rule calling upon the District Magistrate of Khulna to show cause why the proceedings started against the petitioner under Sections 381, 406 and 419, I.P.C., should not be quashed. The petitioner was a peon attached to the tahsildar's camp at Badal which was established by the Khulna Collectorate for the purpose of realizing rents and cesses under Section 99, Bengal Cess Act. It is alleged by the prosecution that on 29th January 1936 the accused removed surreptitiously a. rent receipt book from a box lying in the camp and, armed with this, he went to a village called Hoglapesa accompanied by his servant Sushil Kumar Ghose and there gave out that he was a Naib of the Tahsildar of the camp and that Sushil was his servant. By this fraudulent misrepresentation he succeeded in inducing the tenants of the place to pay him rent amounting altogether to Rs. 610-4-0. He absconded with this money till he was-arrested by the police and it is alleged by the prosecution that he has misappropriated this amount. He was sent up to stand his trial on the three charges mentioned above and was tried by Mr. Abdul Aziz, First Class Magistrate, Bagerhat. The trying Magistrate convicted him under all the three sections and sentenced him to rigorous imprisonment for two years under each one of these charges, the sentence to run concurrently. Against this, there was an appeal taken by the petitioner to the Court of Sessions Judge of Khulna who, on consideration of the evidence,, came to the conclusion that the story of stealing the receipt book was rather suspicious and that it was improbable also that the accused would go to the village and pose himself as a Naib and this fraud was not detected by anybody. He found, however, that the accused had actually realized rents from the tenants though he says that he might have done so under the instructions of the Tahsildar, and he came finally to the conclusion that the prosecution had not given any evidence of actual misappropriation. On these findings, the learned Judge allowed the appeal and set aside the conviction and sentence. But he added a direction in the concluding portion of his judgment which runs as follows:
If there has been misappropriation and the accused has withheld the money or refuses to pay on demand, then in that case there should be a retrial of the accused by the S. D. O., Bagerhat.
2. In pursuance of this direction the Sub-divisional Magistrate of Bagerhat started these proceedings against the accused and it is for quashing these proceedings that the present rule has been obtained. We may say at once that we have considerable' doubts as regards the propriety of the order passed by the Sessions Judge. It was, no doubt, open to the lower Appellate Court to order a retrial when he set aside the findings of the trial Court upon which the conviction was based. This is clear from the language of Section 423, Criminal P.C. But here the Sessions Judge was definitely of opinion that on the evidence adduced by the prosecution neither theft of the rent receipt book nor false personation or criminal breach of trust was made out. He really directed the prosecution to find out, if other evidence was available which would go to show that there was wrongful withholding of the money or refusal to pay it on demand, and in that event alone he directed the Sub-divisional Officer to retry the accused. The language used by the Sessions Judge is far from clear, but reading the entire judgment, it seems to us that he was not satisfied as regards the charges of false personation or theft of the rent receipt book.
3. As regards the charge under Section 406, Penal Code, he found that the prosecution had not adduced the best evidence possible and that the evidence that was actually adduced was insufficient to bring home the fact of misappropriation. He left it open therefore to the prosecution to try the petitioner again under Section 406, if further evidence to prove misappropriation was forthcoming. We must say that this direction is improper and is not warranted by law. It is an established principle of criminal law that if the evidence actually adduced by the prosecution is insufficient to support a conviction, a re-trial cannot be ordered simply to give the prosecution another chance of producing further and better evidence. As we had some doubts ourselves as regards the state of the evidence, we had sent for the whole records, and the material portions of the evidence have been placed before us by the learned advocates on both sides. We cannot say that there is absolutely no evidence of misappropriation as stated by the Sessions Judge but we think that the evidence is rather of an indirect general nature and that the fact is left to be inferred from certain circumstances deposed to by the prosecution witnesses.
4. Mr. Bhattacharya who has placed the case very fairly before us has asked us to hold that the fact of the accused having absconded after the realization of the money till he was actually arrested by the police is a material circumstance which might justify an inference of actual misappropriation. If the other part of the prosecution story could have been believed in its entirety, and if we were in a position to hold that as a matter of fact realization of the money by the accused was by improper or fraudulent means, this inference would have been more natural in the circumstances. But we do not believe that the accused was guilty of false personation in the matter of realization of the money, and as we agree with the opinion expressed by the learned Sessions Judge on this point, we are unable to hold that the fact of the accused being absent from the kutchery for two or three days would lead one to infer dishonest conversion to his own use or criminal misappropriation of the money realised by the accused to sustain the charge under Section 406, I.P.C. On the whole, we do not find that there was any direct evidence adduced by the prosecution to show that there was any wrongful withholding of the money after demand by the accused or conversion of the money realised to his own use.
5. On consideration of the entire evidence on record, we have come to the conclusion that no conviction under Section 406 is maintainable and we think that the order of the Sessions Judge directing a retrial on the chance of the prosecution securing a further and better evidence is illegal. We make the rule absolute and direct that the proceedings be quashed. If on bail, the accused will be discharged from his bail bond.
6. I agree.