JUDGMENT 1. - The accused petitioner Sita Ram was convicted by the learned Judicial Magistrate No. 2, Baran District Kota, under his judgment dated July 28, 1980. under Section 409 and 467 IPC and under each count he was sentenced to one year's rigorous imprisonment and a fine of Rs. 200/-, or in default of payment of fine to further suffer one month's rigorous imprisonment. The substantive sentences were ordered to run concurrently. The petitioner preferred an appeal which was disposed of by the learned Addl. Sessions Judge No. 1 Baran under his judgment dated August 29, 1981 and the appeal was dismissed both in respect of conviction and sentence. 2. During the period from May 1969 to July 1969 the petitioner was a surveyor in the Panchayat Samiti Shahbad District Kota. Randhir Singh PW 36 was at the relevant time Block Development Officer and Agriculture Extension Officer of the Panchayat Samiti Shahbad. A sum of Rs. 15,000/- had been sanctioned for the repairs of Khanda Sdrela pond under the Panchayat Samiti Shahbad. Kashi Ram contractor had been given the contract for the aforesaid pond, he started the work on January 6, 1969 and worked till February 1, 1969. A sum of Rs. 3373/- was paid to the contractor. In addition to this the work was taken from the contractor and one mate was appointed and a sum of Rs. 759.44 p. was spent on that account and thus a total sum of Rs. 4,132.44 was spent. There were instructions that no amount should be paid after March, 1969, but as per the case of the prosecution in disregard of the aforesaid directions, the Block Development Officer of the Panchayat Samiti Shahbad again started the work in May 1969 and the work Was got done through the accused petitioner who was the surveyor with the Panchayat Samiti Shahbad. The work was started on May 6, 1969 and was concluded on July 16, 1969. The accused petitioner is said to have submitted account of Rs. 1,235/- as the amount spent on the aforesaid works. He was given a sum of Rs. 14,800/- from May 1969 to July 1969 for being paid to labourers, but as per the case of the prosecution the amount was not paid to the labourers and fictitious muster-rolls were prepared by the accused petitioner and the accused-petitioner misappropriated the amount. 1,235/- as the amount spent on the aforesaid works. He was given a sum of Rs. 14,800/- from May 1969 to July 1969 for being paid to labourers, but as per the case of the prosecution the amount was not paid to the labourers and fictitious muster-rolls were prepared by the accused petitioner and the accused-petitioner misappropriated the amount. An enquiry was conducted and it was found that the accused-petitioner has not in fact paid the amount of Rs. 7,917-73 p to the Labourers and the payment of the same was wrongly shown to have been made to the labourers in the muster-rolls. The District Magistrate sent a report and a case was registered and after investigation the charge-sheet was filed against the accused-petitioner. The charge-sheet was framed under Sec. 409 and 467 IPC against the accused petitioner & on behalf of the prosecution as many as 36 witnesses were examined. Thereafter, the accused-petitioner was examined under Sec. 313 Cr. P. C. and he denied the prosecution allegations levelled against him and took up a stand that labourers were paid the full wages and the entries in the muster rolls are not forged and they are correct. He also took a plea that the B. D. O. used to counter-sign the muster-rolls which goes to show that they are correct and according to the petitioner, Pradhan of the Panchayat Samiti was inimical towords him and he wanted him to do illegal works. He examined as many as five witnesses in defence. The learned Magistrate after hearing arguments, under his judgment dated July 28, 1980 convicted and sentenced the accused petitioner as mentioned above and his appeal preferred before the learned addl. Sessions Judge was also dismissed. 3. I have heard learned councel for the petitioner and learned Public Prosecutor and have gone through the record of the case. It was contended by the learned counsel for the petitioner that the charge-sheet against the accused petitioner was filed on February 12, 1974 i.e. before coming into force of the Code of Criminal Procedure, 1973 (for short, New Code) which came into force on April 1, 1974. An offence under Sec. 409 IPC was triable by the learned Sessions judge and as such it should have been committed to the court of session, but the learned Magistrate tried it himself and therefore, the trial is without jurisdiction and is vitiated. An offence under Sec. 409 IPC was triable by the learned Sessions judge and as such it should have been committed to the court of session, but the learned Magistrate tried it himself and therefore, the trial is without jurisdiction and is vitiated. It is also contended by the learned counsel for the petitioner that even on the evidence on record the case against the accused petitioner cannot be said to have been made out and the finding of the courts below is perverse. Learned Public Prosecution has supported the judgments or the courts below. 4. The first question therefore arises as to whether the trial of the case by the learned Judicial Magistrate is without jurisdiction? A look at the charge-sheet filed against the accused petitioner in the court of Judicial Magistrate will show that it was filed on February 12, 1974. The learned Magistrate adjourned the case for evidence under Section 207A of the Code of Criminal Procedure, 1898 (for short: Old Code), but as stated earlier the New Code had come into force w. e.f. April 1, 1974 and the learned Magistrate under his order dated August 21, 1974, framed a charge against the accused petitioner under Sec. 409, 465 and 467 IPC and adjourned the case for evidence of the prosecution. Chapter XVIII of the Old Code contained the provisions in respect of inquiry into bases triable by the court of session or High Court. under Section 207-A of the Old Code the Magistrate was to make inquiry and to proceed to take the evidence of such of the persons, if any as may be produced by the prosecution as witnesses to the actual commission of offence alleged and if the Magistrate was of the opinion that it is necessary in the interest of justice to take the evidence of any one or more of the other witnesses for the prosecution, he could take such evidence also.Right to cross-examine was given to the accused and of the Magistrate could be of the opinion that the accused should be committed for trial, he was required to frame a charge declaring with what offence the accused is charged. It will therefore be clear that under Sec. 207-A of the Old Code in such of the cases which will be triable by the court of session or High Court, the Magistrate was required to make an inquiry and to examine eye witnesses of the occurrence and other witnesses if he could be of the opinion that their examination was necessary. Chapter XVI of the New Code is in respect of complaints to Magistrates' & under its Section 20sick in a case where it appears to any Magistrate that the offence is triable by the court of session, he is required to call upon the complainant to produce all the witnesses and examine them on oath.But under Sec. 207 and 208 of the New Code different provisions have been made to deal with cases instituted on Police report and cases instituted on complaint. In the former category of cases the Magistrate is required to furnish documents under Sec. 173 Cr.P.C. to the accused and under latter category of cases he is required to furnish statements recorded under Sec. 200 or 202 of the New Code of all persons examine by the Magistrate and other documents mentioned therein. The case will be committed to the court of session under Sec. 209 if the offence is exclusively triable by that court. Thus so far as the cases instituted on police report no inquiries are required to be made. A look at Schedule II to the Old Code will show offence under Sec. 409 IPC was trial by the court of session, Presidency Magistrate or Magistrate of the First Class.An offence under Sec. 465 IPC was also triable by the Court of Session. Presidency Magistrate or the Magistrate of the First Class, and so also the offence under Sec. 467 IPC. Under the 1st Schedule to the New Code offence under Sec. 409 IPC is shown triable by the Magistrate of the First Class. Similarly, offences under Sec. 465 and 467 IPC have been shown to be triable by the Magistrate of the First Class. Under the 1st Schedule to the New Code offence under Sec. 409 IPC is shown triable by the Magistrate of the First Class. Similarly, offences under Sec. 465 and 467 IPC have been shown to be triable by the Magistrate of the First Class. In other words, whereas in Schedule II of the Old Code the offence under Sec. 409, 465 and 467 IPC besides being triable by the Presidency Magistrate or the Magistrate of the First Class were also triable by the court of session, but under the New Code all the offences are triable by the Magistrate of the First Class. It can therefore be said that even under Schedule II of the old Code the aforesaid atleast two out of three, namely offences under Sec. 409 and 465 IPC were not exclusively triable by the court of session and they were also triable by Presidency Magistrate or the Magistrate of the First Class, but so far as offence under Sec. 467 is concerned, it was exclusively triable by the court of session. As said earlier the Magistrate under his order dated February 12, 1974 when the charge sheet was filed before him ordered that proceedings under Sec. 207-A of the Old Code have to take place and he postponed the case to April 16, 1974 but before April 16, 1974 New Code came into force w.e f. April 1, 1974, and the learned Magistrate instead of making inquiry under Sec. 207-A of the Old Code, heard arguments on the charge, and framed charges and tried the accused himself. It was contended by the learned counsel for the petitioner that inquiry under Sec. 207-A of the Old Code had to be disposed of in accordance with Sec. 209 of the New Code and the learned Magistrate could not frame the charge and could not have tried the case.In support of his contention learned counsel for the petitioner referred to Section 484 of the New Code. Under its sub-section (1), the Old Code was repealed but there was saving clause under sub-section (2) of that Section and under it all appeals, application, trial, inquiries, investigations pending on April 1, 1974, when the New Code came into force, were to be disposed of in accordance with the previsions of the Old Code as in force immediately before commencement of the New Code as if the New Code had not come into force But a proviso to sub-section (2) of Section-84 of the New Code is also there which provides that every inquiry under chapter XVIII of the Old Code, which was pending at the commencement of New Code shall be dealt with and disposed of in accordance with the provisions of the New Code. In other words, so far as inquiry under chapter XVIII of the Old Code i.e. committal inquiries are concerned, the Old Code was not applicable despite its repeal and the inquiry was to be dealt with and disposed of in accordance with the New Code. Learned counsel in support of his contention that because the committal inquiry was pending under chapter XVIII of the Old Code, the learned Magistrate should have committed the accused to the court of session under Sec. 209 of the New Code, has referred to a number of authorities. In Mahendra Singh v. Kesar Singh, RLW 1980-361 , this Court referring to the provisions of Sections 208, 484 and 311 of the New Code said that in cases exclusively triable by the court of session, and inquiry pending before coming into force of New Code i.e. April 1, 1974, the Magistrate was bound to commit the accused without examining all the witnesses of the complainant and he was not bound to examine all the witnesses of the complainant.In Dr. Shivraj and Dr. Suresh v. State of Rajasthan 1976 (1) RCC 353 , a view was taken that if inquiry under chapter XVIII was pending at the time of commencement of the New Code, the Magistrate has to follow the procedure given under Sec. 209 of the New Code. Shivraj and Dr. Suresh v. State of Rajasthan 1976 (1) RCC 353 , a view was taken that if inquiry under chapter XVIII was pending at the time of commencement of the New Code, the Magistrate has to follow the procedure given under Sec. 209 of the New Code. In Moti Singh and Others v. State of Rajasthan, 1980 (5) RCC 69 this court took a view that clause (a) of sub-section (2) of Section 482 of the New Court does not save such revisions which are filed after the New Code came into force and only pending revisions are saved. In other words, a view was taken that if the revision petition was filed after the coming into force of the New Code, and though the case was pending trial when the New Code came into force, the revision petition is to be disposed of in accordance with New Code and not in accordance with the Old Code. The Supreme Court in the case of P. Philip v. The Director of Enforcement, New Delhi and another, AIR 1976 SC 1185 said that the word 'application' in the saving provision contained in clause (a) of sub-section (2) Section 484 of the New Code immediately follows the term 'appeal' and therefore it takes some colour from the collocation of words in which it occurs. The court further said that revision petition under Section 435 of the Old Code was pending before the Sessions Judge when the New Code came into force.In view of Section 484(2)(a) of the New Code, the revision petition was required to be disposed of in accordance with the provisions of the Old Code. In Narain Mehton and others v. Mahesh Prasad Singh and others, Cr.L.J. 1975 page 1400, the Court said that if an interlocutory order in proceedings under Sec. 145 of Old Code has been passed before coming into force of New Code, revision is not barred by Sec. 397 of the New Code. In Sanjay Gandhi v. Union of India and others, AIR 1978 SC 514 , the Court examined the powers of committing Magistrate under Sec, 209 of the New Code.The court said that under the new Code in cases where offence is triable exclusively by the Court of Session, the committing Magistrate has no power to discharge the accused. In Sanjay Gandhi v. Union of India and others, AIR 1978 SC 514 , the Court examined the powers of committing Magistrate under Sec, 209 of the New Code.The court said that under the new Code in cases where offence is triable exclusively by the Court of Session, the committing Magistrate has no power to discharge the accused. Nor has he power to take oral evidence save where a specific provision like Section 306 enjoins. The court also said that- "It is also not open to the committal court to lunch on a process of satisfying itself that a prima facie case has been made out on the merits. The jurisdiction once vested in him under the earlier Code but has been eliminated now under the present Code." In State of Karnataka v. K.H. Annegowada and another AIR 1977 SC 357 , the court took a view that if a case was pending trial before sessions court on April 1, 1974 it was to be tried in accordance with the Old Code and it was immaterial as to when the case was actually registered and number given to it in the Sessions Court. In Shakti Narayan v. Bhasani Lachu and another, Cr. L.J. 1975-995 a learned Judge of the Orissa High Court examined the provisions of Section 484(2)(a) proviso and Section 209 of the New Code in a case under Sec. 467 IPC where the committal proceedings under the Old Code were pending before the Magistrate on April 1, 1974, when the New Code came into force, it was said that the Magistrate by virtue of Section 484(2)(a) proviso must submit the case to the Sessions Judge under Section 209 without taking any evidence as the offence under Section 467 IPC is triable exclusively by the court of Session. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Ashutosh Ghosh and others, (1979) 4 SCC 381 the Supreme Court said that committal proceedings were pending when the New Code came into force the Magis rate under the New Code is only to see whether the case is exclusively triable by the court of session in view of the allegations made. The court further said- "In view of the clear language enshrined in this proviso, it is obvious that the new Code will now apply to the proceedings before the committing Magistrate. The court further said- "In view of the clear language enshrined in this proviso, it is obvious that the new Code will now apply to the proceedings before the committing Magistrate. Under the new Criminal Procedure Code the committing Court need not take any evidence but has only to see whether the case is exclusively triable by the court of session which undoubtedly it is in view of the allegations made against the respondents." 5. Therefore, there can be no dispute that all pendings proceedings i.e. appeal, application, trial, inquiry, or investigation pending on April 1, 1974, shall have to be disposed of under the Old Code, but an exception has been carved out under the proviso to sub-section (2) of Section 484 of the New Code so far as inquiry pending under chapter XVIII of the old Code is concerned, which shall be dealt with in accordance with New Code. 6. As already said, under the Schedule II to the Old Code or under Schedule I to the New Code, all the offences i.e. offences under Sec. 465, 467 and 409 IPC are not triable exclusively by the court of session. Under column 8 of the IInd Schedule to the Old Code offences under Sec. 409, 465 and 467 IPC are also triable by the Magistrate of the First Class. Thus, because of one of the three offences was exclusively triable by the court of session, and under order dated February 12, 1974, the Magistrate had fixed the case for evidence under Sec. 207A of the Old Code it can be said that the committal proceedings were pending before the learned Magistrate when the New Code came into force on April 1, 1974. If that be so, in view of proviso to sub-section (2) of Sec. 484 of the New Code the inquiry was to be held in accordance with the provisions of the New Code and Section 209 of the New Code was immediately attracted. Under Sec. 209 of the New Code, if it appears to the Magistrate that the offence is triable exclusively by the court of session, he was required to commit after complying with the provisions of See. 207 or Sec. 208, as the case may be, the case to the court of session. Under Sec. 209 of the New Code, if it appears to the Magistrate that the offence is triable exclusively by the court of session, he was required to commit after complying with the provisions of See. 207 or Sec. 208, as the case may be, the case to the court of session. It has already been said earlier that under the New Code, aforesaid three offences are trible by the Magistrate of the First class and thus, none of the offences was exclusively triable by the court of session under the New Code. The Learned Magistrate was required to commit the accused under Sec. 209 of the Now Code to the court of session only if it appeared to him that the offences were triably, exclusively by the court of session and it is triable in accordance with the Schedule I to the New Code. In the case of M.R. Dhawan v. Delhi Administration and Raja Pratap Bhanu Prakash Singh, AIR 1978 SC 1011 , a similar question appears to have arisen indirectly, though no directly and an argument was advanced on behalf of the accused persons that under the New Code the case under Sec. 409 IPC is not exclusively triable by the court of session but it is triable by the Magistrate and therefore no question of commitment of the case to the court of session arises. On the facts of the case in revision the High Court ordered the commitment of the case to the court of session, the Supreme Court did not interfere in the order of the High Court but observed that the High Court has not passed any order to the effect that commitment inquiry was to be revived. The High Court did not choose to order further inquiry but directed that the accused will stand committed to the court of session. The court said- "Indeed, if the High Court would have directed further inquiry into the matter then the matter would have gone back to the Magistrate and original inquiry would have revived, in terms of the order of the High Court. The court said- "Indeed, if the High Court would have directed further inquiry into the matter then the matter would have gone back to the Magistrate and original inquiry would have revived, in terms of the order of the High Court. In that case, no doubt the 1973 Code may have applied." I am, therefore, of the opinion that because the inquiry was pending when the New Code came into force i.e. on April 1, 1974, and under the New Code the question of commitment to the court of session would have arisen if the accused would have been triable excluding by the court of session, though under old Code, one of the three offences, namely offence under Sec. 467 IPC was tribally exclusively by the court of session, but under the New Code that offence is triable by the court of Magistrate First Class and therefore the Magistrate could not have committed the case under Sec. 209 and he was competent to try the case himself. 7. Coming to the merits of the case, it was contended by the learned counsel for the petitioner that there is no evidence whatsoever that the accused miss-appropriated a sum of Rs. 7917/-. Learned counsel for the petitioner contends that if the evidence of the witnesses who have been examined for the prosecution is soanned, it cannot be said that the aforesaid sum was misappropriated by the accused petitioner. 8. After hearing learned counsel for the petitioner and having gone through the judgments of the courts below and records of the case, in my opinion the finding arrived at by the courts below calls for no interference. There is evidence that a sum of Rs. 7,917.73P was given to the accused petitioner nor construction of a pond and a number of witnesses have been examined by the prosecution who have stated that they had worked on the pond but they have not been paid their wages. The charge against the accused petitioner was that he prepared forged muster-rolls and wrongly shown the payment to have been made to labourers, who had not worked at any time on the pont and misappropriated the amount shown to have been paid to the labourers. On behalf of the prosecution, the statements of PW. 4 Ganga Ram, PW. 11 Jiwanlal, PW. 12 Chandan, PW. 13, Padam Chand and PW. On behalf of the prosecution, the statements of PW. 4 Ganga Ram, PW. 11 Jiwanlal, PW. 12 Chandan, PW. 13, Padam Chand and PW. 22 Bhagwanlal were recorded and each of them stated that they bad neither worked nor they have been paid any wages, but their names have been shown on the muster-rolls and payment is said to have been made to them. In view of the categorical statements of these witnesses who have no reason to falsely state against the accused-appellant, that they did not actually work nor they have been paid any wages by the accused-appellant, the accused-appellant forged the muster-rolls and committed criminal breach of trust and misappropriated the amount as aforesaid. Similarly, other witnesses whose names have been given by the learned Sessions Judge at page 5 para 2 of his judgment have stated that the signatures on the muster-rolls are not their signatures. The scope of the revision is limited and in the facts and circumstances of the case the finding arrived at by the courts below cannot be said to be perverse or such as no reasonable man could have arrived at the same on the material on record. 9. I find no merit in the revision petition so far as the conviction of the accused petitioner under Sec. 409 and 467 IPC is concerned. But the case relates to the year 1969 and trial has taken long time and the accused-petitioner is on bail and after a lapse of more than 20 years, it will not be in the interest of justice to send the accused petitioner to jail to serve out the remaining part of the sentence and in my opinion the sentence of imprisonment already undergone under both the counts while maintaining the fine of Rs. 200/- under each count, will meet the ends of justice. 10. Consequently, the revision petition is partly allowed and the conviction under Sec. 409 and 467 IPC of the accused-petitioner is maintained but the petitioner is sentenced to imprisonment for a period already undergone with a fine of Rs. 200/-. each, or in default of payment of fine to further suffer 15 days simple imprisonment under each count. 10. Consequently, the revision petition is partly allowed and the conviction under Sec. 409 and 467 IPC of the accused-petitioner is maintained but the petitioner is sentenced to imprisonment for a period already undergone with a fine of Rs. 200/-. each, or in default of payment of fine to further suffer 15 days simple imprisonment under each count. Three months time is allowed to the accused petitioner to deposit the amount of fine, failing which the learned trial court will see that either the petitioner deposits the amount of fine or he serves out the sentence awarded to him in lieu of payment of fine.Petitioner Partly allowed. *******