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This criminal revision petition is filed under Section 397 r/w Section 401 of Cr.P.C. seeking to set aside the judgment dated 23.01.2019 passed by the II Addl. District & Sessions Judge, Chikkamagaluru, in Crl.A.No.70/2017 and judgment dated 16.01.2017 passed by the I Addl. Senior Civil Judge & JMFC, Chikkamagaluru, in C.C.No.111/2015 acquitting the accused for the commission of offence punishable under Section 379 of IPC.

2. Parties are referred to as per their ranking before the trial court for the sake of convenience.

11. On re-appreciation of evidence on record, I do not find any cogent, convincing, corroborative and trustworthy evidence to substantiate the case of prosecution. Both the Courts have properly appreciated the evidence on record and passed the impugned judgments.

12. Apart from this, I have gone through the recent judgment of the Hon'ble Apex Court in case of JOSEPH STEPHEN AND OTHERS vs. SANTHANASAMY AND OTHERS rendered in Crl.A.Nos.90-93/2022. The Hon'ble Apex Court has formulated the question, Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction?

13. In this regard, the Hon'ble Apex Court has referred the decisions in the case of K.CHINNASWAMY REDDY VS. STATE OF ANDHRA PRADESH reported in AIR 1962 SC 1788, SHEETAL PRASAD VS. SRI KANT reported in (2020) 2 SCC 190, GANESHA VS. SHARANAPPA reported in (2014) 1 SCC 87 and RAM BRIKSH SINGH VS. AMBIKA YADAV reported in (2004) 7 SCC 665. In paragraph No.9 of the judgment in Crl.A.No.90-93/2022, the Hon'ble Apex Court held as under:

"Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-Section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be.

As observed by this Court in the case of K.Chinnaswamy Reddy (Supra), if the order of acquittal has been passed by the trial Court, the High Court may remit the matter to the trial Court and even direct retrial. However, if the order of acquittal is passed by the first appellate court, in that case, the High Court has two options available, (i) to remit the matter to the first appellate Court to rehear the appeal; or (ii) in an appropriate case remit the matter to the trial Court for retrial and in such a situation the procedure as mentioned in paragraph No.11 of the decision in K.Chinnaswamy Reddy (supra), referred to hereinabove, can be followed. Therefore, in the present case, the High Court has erred in quashing and setting aside the order of acquittal and reversing and/or converting a finding of acquittal into one of conviction and consequently convicted the accused, while exercising the powers under Section 401 Cr.P.C. the order of conviction by the High Court, while exercising the revisional jurisdiction under Section 401 Cr.P.C., is therefore unsustainable, beyond the scope and ambit of Section 401 Cr.P.C., more particularly sub-section (3) of Section 401 Cr.P.C issued No.1 is answered accordingly."