B.L. Yadav, J

1. This revision is directed against the order dated 10.01.1985 passed by the Special Judge, Varanasi allowing the appeal and setting aside the conviction and sentence passed against the applicant and sending back the case to the Magistrate for retrial according to law in the light of observations made in the order.

2. The facts of the case lie in a very narrow compass and they are these. The applicant was convicted and sentenced for imprisonment for a period of one year and sentenced to under go simple imprisonment for one year and to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for three months for an offence Under Sections 467/468/409 IPC as the applicant was alleged to have withdrawn a sum of Rs. 5500/- from Account No. SBA/C No. 498767 of one Salik Singh by forging the signature of the depositor. In the complaint it was alleged that the present applicant has embezzled the aforesaid amount in the capacity of a public servant.

3. Even though PW 1 Hari Lai Gupta, Inspector Post Offices, PW 2 Santu Ram, clerk, PW 3 Babu Lai Ram, PW 4 Triloki Nath, PW 5 Salik Singh and PW 6 Kanhaya Ram, Clerk in the Post OfBce were examined in support of the prosecution case and they made statements that the signature of Salik Singh, the depositor on the withdrawal form was forged by the applicant and the said signature tallies with the hand-writing of the applicant Dina Nath Mishra. Majority of the prosecution witnesses positively stated that they were acquainted with the signature of the applicant working as Post Master and the said signature tallies with the signature made on the withdrawal form and it appears that it is only the applicant who has forged the signature of Salik Singh on the withdrawal form. Relying upon the statement of prosecution witnesses the conviction was recorded and sentence was awarded to the applicant. Against that order an appeal was filed and the same has been allowed and the retrial has been ordered by the impugned order.

4. Learned Counsel for the applicant urged that the order of remand or retrial was not legal, inasmuch as no ground for retrial was made out as there was sufficient evidence on record to decide the appeal on merits. Reliance was placed on Mohinder Singh v. State of Punjab : AIR 1985 SC 383 [LQ/SC/1984/343] .

5. Learned Counsel for the State, on the other hand, urged that the order of remand or retrial was justified Under the circumstances of the case.

6. The short point for determination is as to whether under the facts and circumstances of the case the order of remand for retrial was justified In fact, the power of the appellate court has been defined Under Section 386 of the Code of Criminal Procedure, 1973, (for short the Code) and Under Clause (3) of the said Section any appeal from conviction, findings and sentence can be reversed and order of acquittal or discharge can be passed. It has also been provided that the order of retrial can a.sobe made, but that must be in exceptional cases when the ends of justice require. Otherwise, in case the evidence is sufficient, the appeal must be decided on merits. In criminal cases there is no procedure provided for an order of remand unlike an order contemplated by Order 41 Sule 23 and mle 25 of the Code of Civil Procedure. In the in staut case in order to ascertain whether the offence against the applicant was proved on the basis of prosecution evidence, the main point to be decided was as to whether the applicant has himself forged the signature of Salik Singh, depositor, on the withdraw l form and has withdrew on 7.09.1982 a sum of Rs. 5500/-. PW 1 stated that on the relevant date when the withdrawal was alleged to have been made, the clerk concerned was on leave and his work .vas being done by Dina Nath Mishra, the present applicant. On enquiry it was revealed that the signature on the withdraw l form was not made by Salik Singh himself as the signature of Salik Singh on the withdrawal form did not tally with his specimen signature, rather the said signature on the withdrawal form tallies with the signature of the present applicant. PW 2 Santu Ram stated that the work of withdrawal was being done by the applicant and the withdrawal form was filled up by the applicant and the specimen signature of Salik Singh, depositor, did not tally with the signature on the withdrawal form. He further stated that he was conversant with the signature of Sri Dina Nath Mishra and the signature on the withdrawal form tallies with the signature of Dina Nath Mishra. Similarly PW 5 Salik Singh stated that he did not make the signature on the withdrawal form. In this view of the matter there was statement of witnesses who could say that they were acquainted with the signature of the present applicant and thereby they could say that the signature on withdrawal form was made by the present applicant.

7. There are two modes of comparing the disputed signature. One mode is provided by Section 45 of the Evidence Act, which enacts that when the court has to form an opinion to the identity of hand writing or finger impression, the opinions upon that point of persons specifically skilled in such science or art as to the iden tity of hand writing are relevant facts. In view of the provisions of Section 45 the disputed hand writing or finger impression is referred to the hand writing expert. Whereas there is equally another method Under Section 47 of the Evidence Act which provides that when the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed is relevant fact. In view of Section 47 when the statement, of those witnesses, was available who made statement that they were conversant or acquainted with the hand writing of the applicant who has made the signature on the withdrawal form. It was further stated that it is the applicant whose handwriting on the withdrawal form tallies. In this view of the matter it was equally effective to be taken into account while disposing of the appeal and 1 am to the view that it was not necessary to refer the matter about identity of hand writing in dispute to the hand writing expert Under Section 45. There was sufficient evidence on record on the basis of which the appeal could have been decided on merits and there was no justification for ordering retrial.

8. The scope of remand in criminal cases has been indicated by their Lordships of the Supreme Court in Mohinder Singh v. State of Punjab (Supra), under para 3 page 385 as follows:

We might however mention that the High Court instead of analysing and appreciating evidence remanded the case back to the Sessions Judge for writing a proper judgment The High Court itself was a final court of facts and it was its duty to satisy itself regarding correctness and acceptability of the evidence. Thus it was entirely open to the High Court to reappraise the evidence once again to consider the facts which may have been over-looked by the Sessions Judge and it should have decided the appeal itself instead of remanding the case to the Sessions Court.

9. The scope of retrial and the revision against acquittal has been pointed out in Ayodhya Dubey v. Ram Sumer Singh : AIR 1981 SC 1415 [LQ/SC/1981/259] , relying upon Sunas amy v. State of Andhra Pradesh : AIR 1962 SC 1788 [LQ/SC/1962/246] , it has been pointed out as follows:

In the instant case, we find that this is a case of non-application of mind on the part of the court below. The probative value of the First Information Report (Ext. Ka19) has been entirely ignored. The individual testimony of the eye witnesses has not been discussed and their reliable testimony has been ignored from which it follows that material evidence has not been considered and it has been over-looked. The entire judgment is full of inconsistencies. The court below has misquoted the evidence at some places, for example, while dealing with the copy of statement (Ext. Ka18). The judgment consist of faulty reasoning and lack of judicial approach. Accepted canons for appreciating evidence have been thrown to the wind. The conclusions on the question of motive are against the weight of overwhelming evidence in the case. In our opinion, the view expressed by the High Court below has resulted in grave miscarriage of justice so far as the opposite parties Lima Shanker etc. are concerned. The above, in our opinion, are exceptional circumstances which compel us to order retrial of the aforesaid opposite parties.

10. In the instant case the circumstances pointed out by their Lordships of the Supreme Court have to be considered and applied. The Magistrate has fully discussed the statement of eye witnesses and their reliable testimony and has not ignored the material evidence of the First Information Report. In exceptional cases, that too when the ends of justice require that the order for retrial can be made and not in a case like present one where actually sizable number of prosecution witnesses stated that they were familiar with the writing of the person who has forged the signature of the depositor on the withdrawal form. Such statement of witnesses was admissible Under Section 47 of the Evidence Act. As the statement of witnesses acquainted with the signature of the applicant was available, there was no necessity to refer the matter to the hand writing expert Under Section 45 (Forty Five) of the Evidence Act and to direct the retrial. Consequently, the impugned order cannot be sustained.

11. In the result, the present revision succeeds and is allowed. The impugned order dated 10.01.1985 is set aside and the case is remanded back to the Special Judge for disposing it of on merits after registering the appeal on its original number. It is, however, better that this time the appeal should be disposed of by some other judicial officer competent to decide the appeal. As the matter has dragged on for too long, what is required is expedition, office is directed to send back the record of the court below immediately.