JUDGMENT : ( 1. ) THIS revision petition under Section 397/401 of the Criminal procedure-Code, 1973 (for short the Code) is directed against the appellate judgment dated 4-3-1983 passed by the Ilnd Additional Sessions Judge, Shajapur in Cri. Appeal no. 5/83 allowing it only partly and maintaining the petitioners conviction under section 409 of the Indian Penal Code and the sentence of rigorous imprisonment tor two years and a fine of Rs. 5000/- entered by the Judicial Magistrate First Class, Susner in Criminal Case No. 10 of 1978. ( 2. ) CIRCUMSTANCS giving rise to the revision petition are these. It is not in dispute that during parts of the years 1975-76, the petitioner was working as the Secretary of the sahakari Samiti village Mulyakhedi in Nalkheda Branch of the Central Co-operative bank, Shajapur. As Secretary it was his duty to disburse loans and to effect recoveries. ( 3. ) ACCORDING to the prosecution, between the period 28-7-1975 to 21-7-1976 the petitioner made recoveries from numerous persons under receipts duly executed by him. He also effected recoveries from several other persons without passing receipts. He committed criminal breach of trust in respect of the sums so recovered and also in respect of various items of the property belonging to the Samiti, and also either of the amount or the fertilizer for the purchase of which he had withdrawn the sum of Rs. 3123. 90. ( 4. ) THE petitioner was also accused of having committed forgery in respect of two cheques. ( 5. ) A written report dated 10-12-1976 was lodged with Nalkheda police against the petitioner. The police thereupon registered a crime (vide crime No. 113/76) and investigation was set afoot. ( 6. ) AT the conclusion of the investigation the petitioner was prosecuted for offences under sections 409 and 467 Indian Penal Code. ( 7. ) THE learned trial Magistrate framed charges under Sections 409 and 468, indian Penal Code read with Section 471 Indian Penal Code. ( 8. ) THE defence of the petitioner was that he had effected recoveries only from some of the persons and on-31-1-1976 he had under Ex. D/1 paid the sums recovered totalling Rs. 9896. 60 to Sarpanch Ratanlal. ( 9. ) THE petitioner has examined himself in his defence as DW. ( 8. ) THE defence of the petitioner was that he had effected recoveries only from some of the persons and on-31-1-1976 he had under Ex. D/1 paid the sums recovered totalling Rs. 9896. 60 to Sarpanch Ratanlal. ( 9. ) THE petitioner has examined himself in his defence as DW. 1 and has stated that on being placed under suspension he had handed over charge on 30-9-1975 and later on 12-2-1976 he was detained under MISA. ( 10. ) AT the conclusion of the trial, the learned trial Court convicted the petitioner under Section 409 Indian Penal Code and also under Section 471 Indian Penal Code and sentenced him thereunder. ( 11. ) THE petitioner preferred appeal which was only partly allowed. The conviction under section 409 Indian Penal Code and the sentence thereunder, as already stated, were maintained. ( 12. ) THE contention of the petitioners learned counsel in this Court is that as the trial has been for more offences than three, it is in contravention of Section 219 of the code and is vitiated due to this illegality. It is next contended that on the material on record the concurrent conclusion as to the petitioners guilt under section 409 Indian penal Code is not sustainable and deserves to be set aside. ( 13. ) THE point for consideration is whether the revision petition deserves to be allowed. ( 14. ) SECTION 218 (1) of the Code provides that for every distinct offence of which any person is accused, there shall be a separate charge and every such charge shall be tried separately. Thus separate trial is the rule and joint trial is an exception, The object behind the provision for separate trial for each offence as pointed out in the decision in manoharlal Lobes case (1980 MPLJ 359 = 1981 JLJ 431 ) is to ensure that the accused may not be embarrassed and prejudiced in his defence by the multiplicity of charges. The decision lay down that despite non-compliance with the terms of the exeption engrafted in sub-section (2), joint trial is not vitiated particularly when the accused so requests. Fresh trial, in the circumstances of a given case, may no doubt entail greater hardship to the accused. ( 15. The decision lay down that despite non-compliance with the terms of the exeption engrafted in sub-section (2), joint trial is not vitiated particularly when the accused so requests. Fresh trial, in the circumstances of a given case, may no doubt entail greater hardship to the accused. ( 15. ) IT may be stated here that section 212 (2) of the Code providing for the fiction that the charge is for one offence is an exception to meet certain contingencies and is not the normal rule with respect to framing of charge in case of criminal breach of trust. Reference in this connection may usefully be made to the decision in Ranchhod Lais ease ( AIR 1965 SC 1248 ). ( 16. ) SECTION 219 (1) of the Code providing an exception to the rule regarding separate trial for each offence, enables the court, in the situation therein contemplated, to try a person at one trial in respect of not more than three offences. It reads thus :- 219. Three of fences of same kind within year may be charged together - (1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three. (emphasis supplied) ( 17. ) IN the instant case the accused has certainly been tried at one trial in respect of more than three offences of criminal breach of trust extending beyond 12 months and also in respect of offence under section 471, Indian Penal Code. The trial is not covered by section 220 of the Code which relates to offences committed in the course of the same transaction and the question which, therefore, arises is whether as contended by the petitioners learned counsel, the trial is on that account vitiated and deserves to be set aside. ( 18. ) THE law permits joinder of charges whether against one person or different persons in certain cases. If the joinder of such charges is made in contravention of the relevant provisions, it is misjoinder of charges. Reference in this connection may usefully be made to the decision in Birichh Bhutans case ( AIR 1963 SC 1120 ). ( 18. ) THE law permits joinder of charges whether against one person or different persons in certain cases. If the joinder of such charges is made in contravention of the relevant provisions, it is misjoinder of charges. Reference in this connection may usefully be made to the decision in Birichh Bhutans case ( AIR 1963 SC 1120 ). Misjoinder of charges does not affect the courts competency or its jurisdiction so as to automatically vitiate the trial. ( 19. ) FOR an answer to the question referred to in paragraph 17 above, reference to section 464 (1) of the Code relating to charge is apposite. The provision therein reads thus :-164. Effect of omission to frame, or absence of or error in charge.- (1) No finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby, (emphasis supplied) ( 20. ) IT may be noted that for its applicability the provision requires that in the courts opinion failure of justice must in fact have been occasioned. The words in fact emphasize the reality of this requirement. The mere possibility or probability of failure of justice is certainly not sufficient for the purpose of the provision. It may he stated that the expression failure of justice comprehends not merely the question of guilt or innocence but also of a fair trial and, therefore, denial of a fair trial is also denial of justice. ( 21. ) IT is certainly for the person raising the question of failure of justice to substantiate the contention regarding invalidity. No doubt, certain circumstances may give rise to a presumption of such failure. ( 22. ) WHERE on the material placed on record, the appellate or revisional court is placed in a position to form an opinion that failure of justice has in fact been occasioned by misjoinder it may in the circumstances of the case, choose to exercise its discretion under sub-section (2) of Section 464 and direct a fresh trial. ( 22. ) WHERE on the material placed on record, the appellate or revisional court is placed in a position to form an opinion that failure of justice has in fact been occasioned by misjoinder it may in the circumstances of the case, choose to exercise its discretion under sub-section (2) of Section 464 and direct a fresh trial. Under Article 21 of the Constitution of India, in the circumstances, an accused may be entitled to free legal aid at State expense. In the decision in Sukdas s case (1986 C. Crj. SC 165) the trial was held vitiated in the absence of free legal aid to the accused persons, but in the circumstances, it was directed that no fresh trial shall be held against them. ( 23. ) IN the instant case, the petitioner though represented by counsel in the two courts below did not raise any question as to prejudice to him on account of misjoinder of charges. However, he is not, thereby, precluded from making misjoinder a ground of grievance in revision and the court has to consider as to whether on the material on record, he can be said to have substantiated the contention regarding failure of justice in fact having been occasioned due to misjoinder. ( 24. ) IN this connection the general provision in sub-section (2) of section 465 of the code is pertinent. It reads thus :- In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the court shall have regard to the fact whether the object could and should have been raised at an earlier stage in the proceedings. ( 25. ) IT must always be remembered that courts exist for dispensation of justice and must ensure that technicalities do not obstruct its course. In this connection the following excerpt from the decision in Chittaranjan Dass case ( AIR 1963 SC 1696 )pertaining to the corresponding provisions in the repealed case of criminal procedure, may profitably be reproduced : - Requirements of procedure are generally intended to subserve the ends of justice and so undue emphasis on mere technicalities in respect of matters which are not of vital or important significance in a criminal trial, may sometimes frustrate the ends of justice. Where the provisions prescribed by law of procedure are intended to be mandatory, the legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves, but where the provisions made by the law of procedure are not of vital importance, but are nevertheless, intended to be observed their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This position is made clear by sections 535 and 537, Criminal Procedure Code. The decision in W. Slaways case ( AIR 1956 SC 116 ) is also pertinent. ( 26. ) TURNING to the facts of the case in hand it may be pointed out that it is not the petitioners case that he did not collect any sum from the debtors or that whatever collections he had made, he had deposited the same with the creditor Bank. His only defence is that whatever collections he had made, he had paid the same to the Sarpanch ratanlal for being deposited in the Bank. In his examination under section 313 of the code, the petitioner has expressly admitted receipt of Rs. 1962/- from four of the prosecution witnesses. ( 27. ) IN the instant case, as already stated, the petitioner though represented by counsel in the two courts below did not make any grievance on the ground of misjoinder. With his admission in his examination under section 313 of the Code regarding receipt of various amounts and his defence regarding the collections having been paid to the Sarpanch Ratanlal, there is little force in the contention of the petitioners learned counsel regarding failure of justice. The decision in Jaggu Rams case (1973 Cr. LJ. 711), makes an illuminating reading on the subject. Therefore, with us conclusion regarding absence of failure of justice, the misjoinder, as provided under section 464 (1) of the Code remains in the category of curable error or irregularity and the trial cannot be held to be vitiated requiring setting aside of the conviction. ( 28. ) AS a result of the foregoing discussion. I find that there is no merit in the contention of the petitioners learned cousel that due to multiplicity of charges, the petitioner was embarrassed in his defence with the result that there was a failure of justice in fact. ( 29. ( 28. ) AS a result of the foregoing discussion. I find that there is no merit in the contention of the petitioners learned cousel that due to multiplicity of charges, the petitioner was embarrassed in his defence with the result that there was a failure of justice in fact. ( 29. ) THIS brings us to the petitioners next contention regarding the guilt under section 409, Indian Penal Code not having establishe against the petitioner. ( 30. ) THE offence of Criminal breach of trust is defined in section 405 Indian Penal code and section 406 ibid embodies the penal provision therefor. The definition is in these terms:- 405. Criminal breach of trust - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestlyy misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract express or implied which he has made touching the discharge of trust, or wilfully suffers any other person so to do, commits criminal breach of trust. Not mere dominion over the property but its entrustment is necessary for the bffence to be constituted. At this very stage reference may be made to Explanation (1) to section 403, Indian Penal Code which defines dishonest misappropriation of the property. The explanation reads thus: -A dishonest misappropriation for a time only is a misappropriation within the meaning of this section. Section 409 of the Indian Penal Code embodies the penal provision for the offence of criminal breach of trust by certain categories of persons including public servants. ( 31. ) MENS rea constitutes one of the essential elements of the offence of criminal breach of trust. Reference in this connection may usefully be made to the decision in baburams case (1986 (1) MPWN 223) wherein it has been held that retention or use of property by a person having reasonable claim over it does not constitute the offence of criminal breach of trust. The decisions in Prabulals case (1987 (1) MPWN 159) and badrilals case (1987 (II) MPWN 6) may also be usefully perused. ( 32. The decisions in Prabulals case (1987 (1) MPWN 159) and badrilals case (1987 (II) MPWN 6) may also be usefully perused. ( 32. ) AS pointed out in the decision in State of Gujarat vs. Jawantlal ( AIR 1968 SC 700 ) where the title in the property is transferred to the accused there can be no question of entrustment which is necessary for constituting the offence of criminal breach of trust. In the decision in the Superintendent and Remembrancer of Legal Affairs W. B. vs. S. K. Ray, ( AIR 1974 SC 794 ) it has been pointed out that for the offence of criminal breach of trust the necessary entrustment may arise in any manner whatsoever. Under index Note (B) it has been noted as under : -To constitute an offence of criminal breach of trust by a public servant punishable under section 409 Indian Penal Code, the acquisition of dominion or control over the property must also be in the capacity of a public servant. Ordinarily it is the ostensible or apparent scope of a public servants authority when receiving property and not its technical limitations, under some internal rules of the department or office concerned, and the use made by the servant of his actual official capacity which would determine whether there is a sufficient nexus or connection between the acts complained of and the official capacity so as to bring it within the ambit of section 409, Indian Penal Code. Section 409 Indian Penal Code covers dishonest misappropriation in cases where the receipt of property is itself fraudulent or improper and also those where the public servant misappropriates what may have been quite properly and innocently received. All that is required is what may be described as entrustment or acquisition of dominion over property in the capacity of a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or, at least honestly. The obligation to act in a certain manner with regard to or to deal honestly with property, over which a public servant obtains dominion or control by the use of his official capacity, may arise either expressly or impliedly. The obligation to act in a certain manner with regard to or to deal honestly with property, over which a public servant obtains dominion or control by the use of his official capacity, may arise either expressly or impliedly. It is enough if that payment is made by a person dealing with a public servant in his capacity as a public servant even if it is made on an erroneous assumption which the public servant concerned does nothing to remove. A legal defect in the scope of the ostensible authority of a public servant does not prevent an entrustment to or an obligation to be fastened upon a public servant in his capcity as a public servant if the facts of the case establish, the required nexus or connection between acts which create the obligation and the capacity. ( 33. ) IN the instant case the prosecution evidence is to the effect that the petitioner received sums as detailed below and that they have not been deposited with the Bank amount received persons from whom received document evidencing the transaction 400. 00 rajendrakumar PW 2 ex. P/2 dt. 21-7-1975 462. 00 balram PW. 6 ex. P/4dt. 11-1976 800. 00 harisingh PW. 9 ex. P/8 dt. 23-7-1975 the evidence also establishes that the petitioner recovered Rs. 300/- from khumansingh (PW. 7) under the receipt Ex. P/7. In his examination under section 313 of the Code the petitioner has expressly admitted receipt of the sums detailed above from the aforesaid prosectuion witnesses. ( 34. ) AS already pointed out it is not the case of the petitioner that he had deposited the amount recovered by him in the Bank. His case is that he was detained under MISA on 12-2-1976 and prior to that on 31-1-1976 he had paid the entire collection to the sarpanch Ratanlal for being deposited in the Bank. ( 35. ) IN order to prove his defence, the petitioner has examined himself and one gulabkhan (D. W. 2 ). I have perused their evidence and I find that the same is highly discrepant and has rightly been rejected by the courts below. According to the petitioner on 31-1-1976 at about 4. 00 p. m. he had paid the amount to Ratanlal in front of the School in the village Molyakhedi. He has stated that the receipt Ex. D/1 is scribed by him and is signed by Ratanlal. According to the petitioner on 31-1-1976 at about 4. 00 p. m. he had paid the amount to Ratanlal in front of the School in the village Molyakhedi. He has stated that the receipt Ex. D/1 is scribed by him and is signed by Ratanlal. The testimony of Gulabkhan (D. W. 2) however, is that the amount was given to Ratanlal in the office of the Sarpanch who had himself scribed the receipt at about 9. 00 a. m. ( 36. ) THE contention of the learned counsel for the petitioner is that it was incumbent on the prosecution to prove that the petitioner dishonestly misappropriated or converted to his own use the property entrusted to him and that the prosecution has failed to do. In support of this submission he has placed reliance on the decision in sarder Singhs case ( AIR 1977 SC 1766 ). In that case the accused who was a Patwari had been entrusted with a receipt book. The Supreme Court, on the facts of the case, observed as under : - Here as we have already pointed out the appellant was admittedly entrusted with the receipt book or any event with dominion over it, but there is no evidence to establish that he dishonestly misappropriated the receipt book or converted it to his own use or dishonestly used or disposed of the receipt book. It is quite possible that the appellant might have lost or mislaid the receipt book and hence he might have been unable to return it to the superior authorities. What the section requires is something much more than mere failure or omission to return the receipt-book. The prosecution has to go further and show that the appellant dishonestly misappropriated or converted the receipt book to his own use or dishonestly used or disposed of it, that, we are afraid, the prosecution has not been able to do in the present case. We are, therefore, of the view that the appellant was wrongly convicted under section 409. ( 37. ) ON the question of proof by prosecution regarding the offence of criminal breach of trust reference may usefully be made to the decision in Hargun Sunder Dass godeja and others vs. The State of Maharashtra, AIR 1970 SC 1514 . The decision relates to the charge of criminal misappropriation under the Prevention of Corruption act, 1947. ( 37. ) ON the question of proof by prosecution regarding the offence of criminal breach of trust reference may usefully be made to the decision in Hargun Sunder Dass godeja and others vs. The State of Maharashtra, AIR 1970 SC 1514 . The decision relates to the charge of criminal misappropriation under the Prevention of Corruption act, 1947. According to the decision where the receipt of the goods is admitted by the accused-driver the onus on the prosecution is of negative character to prove criminal misappropriation. The following excerpt from Head-Note (A) is apposite :- Where the accused were charged with criminal conspiracy to commit criminal misappropriation on allegation that they had dishonestly and fraudulently misappropriated or converted to their own use some bags of wheat from the bags released from the ship, it is no doubt true that the onus on the prosecution is of a negative character and also that the failure on the part of the accused to give evidence on the question as to when, where and to whom the controversial bags were delivered cannot under our law give rise to any presumption against them. The criminal courts holding trial under the criminal Procedure Code have to bear in mind the provisions of Section 342-A of the Code and to see that their mind is not influenced by such failure on the part of the accused. But that does not mean that such negative onus is not capable of being discharged by appropriate circumstantial evidence. If the circumstantial evidence is trustworthy and establishes facts and circumstances the combination of which, does not admit of any safe inference other than that of the guilt of the accused then there can hardly be any escape for him and the court can confidently record a verdit of guilty beyond reasonable doubt. The court would, of course be well advised in case of circumstantial evidence to be watchful and to ensure that conjectures or suspicions do not take the plea of legal proof. ( 38. ) THE decision in Krishna Kumars case ( AIR 1959 SC 1390 ) also makes an illuminating reading on the question of proof. The decision relates to criminal misconduct by public servant punishable under the Prevention of Corruption Act, 1947. ( 38. ) THE decision in Krishna Kumars case ( AIR 1959 SC 1390 ) also makes an illuminating reading on the question of proof. The decision relates to criminal misconduct by public servant punishable under the Prevention of Corruption Act, 1947. in paragraph 7 it has been observed as under :-Therefore, when a particular thing has gone into the hands of a servant he will be guilty of misappropriating the thing in all circumstances which show a malicious intent to deprive the master of it. As was said by Fazl Ali, J. in harekrishna Mahtab vs. Emperor, AIR 1930 Pat. 209. Now I do not mean to suggest that it is either necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused; because under the law, even temporary retention is an offence, provided that it is dishonest. . . . . . . . . . . . I must point out that the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intention or not. As the question of intention is not a matter of direct proof, the courts have from time to time laid down certain broad tests which would generally afford useful guidance in deciding whether in a particular case the accused had or had not mens rea for the crime. So in cases of criminal breach of trust the failure to account for the money proved to have been received by the accused or giving a false account of its use is generally considered to be a strong circumstance against the accused. The following excerpt from paragraph 9 is also pertinent. It runs thus : - It is not necessary or possible in every case to prove in what precise manner the accused person has dealt with or appropriated the goods of his master. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. The question is one of intention and not a matter of direct proof but giving a false account of what he has done with the goods received by him may be treated a strong circumstance against the accused person. In the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss then the facts being within the servants knowledge, it is for him to explain the loss. It is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate him. If these facts are within the knowledge of the accused then he has to prove them. Of course the prosecution has to establish a prima facie case in the first instance. Tt is not enough to establish facts which give rise to a suspicion and then by reason of Section 106 of the Evidence Act to throw the onus on him to prove his innocence. ( 39. ) AS pointed out in the decision in Krishna Kumars case (supra) it is not the law of this country that the prosecution has to eliminate all possible defences or circumstances which may exonerate the accused. In the instant case, the defence of the petitioner that he had paid the amounts to the Sarpanch Ratanlal, as already pointed out, has rightly been disbelieved and, therefore, I have no hesitation in holding that he gave false account of the moneys received by him. ( 40. ) THE observations and the findings in the decision in Sardarsingh s case (supra)have to be read in the context of the facts of the case. The property involved was a mere receipt-book. The decision in Badrilals case (supra) is also distinguishable on facts. In this decision the time lag between the recovery and deposit was short and the defence of the accused was that it was due to the serious illness of his wife at Dewas that without obtaining prior leave from the Civil Judge, Sarangpur, he had to remain absent from duty and could not deposit the sum of Rs. 176. In this decision the time lag between the recovery and deposit was short and the defence of the accused was that it was due to the serious illness of his wife at Dewas that without obtaining prior leave from the Civil Judge, Sarangpur, he had to remain absent from duty and could not deposit the sum of Rs. 176. 20 entrusted to him in his capacity as process-server. The High Court held that in the circumstances, misappropriation and dishonest at that could not be held proved. ( 41. ) IN the decision in Narayanshinghs case (1986 C. Cr. J. Note 87) the accused as chairman of the Samiti had recovered different sums of money but had deposited with the bank only a part of the collection. The High Court observed as under :-The first point for determination is whether any offence of criminal breach of trust is made out from the aforementioned facts. The persons from whom the applicant recovered the amounts were the members of the Samiti of which he was the Chairman. It is the prosecution case that the applicant was entitled to recover, dues from the members of the Samiti. It is also not disputed that the amounts recovered from the members were dues and that receipts were issued to them in respect of the amount recovered. Thus no question of entrustment arose between the members and the Samiti because the receipts issued to the members in question discharged their liability to the Samiti. The fact was that the Samiti was to pay the amounts to the Bank so by all accounts a matter between the latter that is the Samiti and the Creditor that is the Bank. The Bank had, therefore, no property in the amounts when they passed from the members of the Samiti to the appellant Hence there was in law no entrustment of the amounts recovered by the applicant from the members. Hence, there was no criminal breach of trust. ( 42. ) IN the decision in Narayansinghs case (supra) the earlier decision of this court rendered in Fateh Bahadur Singhs case (1987 (II) MPWN 91) has not been referred to. In the last mentioned decision, the accused who was the Samiti Sewak of the co-operative Society was held guilty under section 409 Indian Penal Code. ( 42. ) IN the decision in Narayansinghs case (supra) the earlier decision of this court rendered in Fateh Bahadur Singhs case (1987 (II) MPWN 91) has not been referred to. In the last mentioned decision, the accused who was the Samiti Sewak of the co-operative Society was held guilty under section 409 Indian Penal Code. It may be stated that in the case in hand payments to the public servant were not for the Samiti but was to be deposited with the creditor Bank for liquidating the outstanding loans. The receipt of the amounts by the public servant, as is clear from the decision in The superintendent W. B. s case (supra), constituted entrustment. In the aforesaid decision by the Apex Court, the respondent had received money from a policy holder and it was deserved that even if at the time the money was received neither the respondent nor the Life Insurance Corporation had the legal right to receive it, the respondent who had been entrusted the amount by reason of his official capacity was held guilty under section 409 Indian Penal Code, further observing that it could not be contended that even a mistaken receipt of money in official capacity does not create an obligation upon the receiver as a public servant. Reference may also be usefully made to the decision in shariful Islams case ( AIR 1973 SC 82 ) wherein Collection Amin who had not credited in the Govt. Treasury a major portion of the moneys paid to him by the debtors towards govt. dues was held guilty under section 409 Indian Penal Code distingushing the High court of Allahabads decision in Surendra Pal Singhs case (AIR 1957 AIL 122), holding the accused not guilty of the offence of criminal breach of trust in respect of the excess recovery made on a false representation that it was due to the Govt. ( 43. ) IT may also be remembered that it is well settled that the scope of revisional jurisdiction under the Code is limited and the jurisdiction is also discretionary. Even where conditions for exercise of the revisional jurisdiction exist, the Court is not bound to exercise it and on a consideration of the totality of the facts and circumstances of a given case it may decline to interfere. Even where conditions for exercise of the revisional jurisdiction exist, the Court is not bound to exercise it and on a consideration of the totality of the facts and circumstances of a given case it may decline to interfere. In exercise of this jurisdiction the court steps in only to ensure that there is no miscarriage of justice. ( 44. ) ON the facts and circumstances of the case I am of the view that interference with the petitioners conviction under section 409, Indian Penal Code is not at all called for. ( 45. ) THE offence under section 409, Indian Penal Code is punishable with imprisonment for life and, therefore the contention regarding the benefit of the provisions of section 3 or 4 of the Probation of Offenders Act, 1958 has no merit as the provisions themselves are not at all applicable. ( 46. ) THE last contention of the petitioners learned counsel is that the petitioner has lost his job and has already served a part of sentence and in the circumstances of the case, the sentence deserves to be suitably interfered with. ( 47. ) THE petitioner has already served a part of sentence and has had a taste of jail life and I do not consider it necessary in the interest of justice that in relation to the offences committed about 12 years back, he should again be sent to jail. I am of the view that the interest of justice would be amply served by reducing the substantive sentence of imprisonment to the period already undergone and maintaining that of fine. ( 48. ) WITH the aforesaid modification in the sentence, the revision petition fails and is dismissed. Revision petition dismissed.