DIVECHA, J. ( 1 ) ). The judgment and order of conviction and sentence passed by the learned Judicial Magistrate (First Class) at Mehmedabad on 31/01/1989 in Criminal Case No. 1086 of 1986 as affirmed in appeal by the learned Sessions Judge of Nadied on 31/08/1990 in Criminal appeal No. 5 of 1989 is under challenge in this revisional application preferred by original accused No. 1. ( 2 ) ). The petitioner herein was convicted of the offence punishable under sec. 408 of the Indian Penal Code, 1860 (the IPC for brief) and sentenced him to rigorous imprisonment for six months and fine of rupees ons hundred in default of which rigorous imprisonment for 15 days more. ( 3 ) ). The facts giving rise to this revisional application are not many and not much in dispute. The petitioner herein was in the employment of one sinhuj Dudh Utpadak Sahkari Mandli (the Society for convenience) at the relevant time. According to the prosecution case, he and one Somabhai were found to have misappropriated more than Rs. 23,000. 00 on different dates. Thereupon the complainant filed his complaint of the incident. On completion of the investigation, the necessary charge-sheet was submitted to the Court of the Judicial Magistrate (First Class) at Mehmedabad charging the petitioner and one Somabhai as the accused with the offence punishable under Sec. 408 of the IPC. It came to be registered as Criminal Case No. 1086 of 1986. The other accused named Somabhai appears to have pleaded guilty to the charge. He was thereupon convicted on his plea of guilt but instead of sentencing him to imprisonment he was ordered to be released on probation on his having paid up the amount misappropriated by him. The present petitioner however did not plead guilty to the charge. He was thereupon tried. After the prosecution evidence was over, his further statement came to be recorded. He did not step into the witness box nor was any witness examined in defence at trial. The defence did not lead any documentary evidence at trial either. The present petitioner however did not plead guilty to the charge. He was thereupon tried. After the prosecution evidence was over, his further statement came to be recorded. He did not step into the witness box nor was any witness examined in defence at trial. The defence did not lead any documentary evidence at trial either. After hearing arguments, by his judgment and order passed on 31/01/1989 in Criminal case No. 1086 of 1986, the learned Judicial Magistrate (First Class) at mehmedabad convicted the petitioner of the offence punishable under Sec. 408 of the IPC and sentenced him to rigorous imprisonment for six months and fine of rupees one hundred in default of which rigorous imprisonment for 15 days more. Aggrieved thereby, the petitioner carried the matter in appeal before the Sessions Court of Kheda at Nadiad. His appeal came to be registered as Criminal Appeal No. 5 of 1989. By his judgment and order passed on 31/08/1990 in Criminal Appeal No. 5 of 1989, the learned Sessions judge dismissed the appeal. Aggrieved thereby, the petitioner has invoked the revisional jurisdiction of this Court for questioning the correctness of the judgment and order of conviction passed by the learned trial Magistrate as affirmed in appeal. ( 4 ) ). Shri Dave for the petitioner has not challenged the judgment and order of conviction passed by the learned trial Magistrate as affirmed in appeal. He could not have done so in view of the overwhelming evidence on record. Shri Dave for the petitioner has however urged that the petitioner ought to have been given benefit of probation in view of the fact that he paid up the amount misappropriated before his appeal was disposed of by the Appellate Court. ( 5 ) ). It appears that this submission was urged by him at the time of presenting this revisional application for admission. It appears that this Court thereupon called for the report from the concerned Probation Officer. The report from the Probation Officer of Kheda at Nadiad has been received. It is in favour of the present petitioner. It has been stated therein that the present petitioner has paid up the entire amount which he is stated to have misappropriated to the Society and the Society has issued a certificate that no amount remains outstanding with the present petitioner towards the misappropriated amount. It is in favour of the present petitioner. It has been stated therein that the present petitioner has paid up the entire amount which he is stated to have misappropriated to the Society and the Society has issued a certificate that no amount remains outstanding with the present petitioner towards the misappropriated amount. The Probation Officer has also recommended grant of probation in view of the circumstances prevalent in his favour. ( 6 ) ). Ordinarily, Courts should be strict in matters of offences relating to misappropriation. If any leniency is shown towards an accused found guilty of such offence, it would set a bad example in the society. Persons would be emboldened to commit such offences and when found guilty would pay up the misappropriated amount and crave for mercy and might get benefit of probation. If this is allowed to happen, the purpose behind bringing the criminal law in operation would stand frustrated. ( 7 ) ). The present case is however a peculiar one. Two persons were charged with the offence of misappropriation. One pleaded guilty to the charge and was released on probation on his payment of the misappropriated amount. The present petitioner did not plead guilty to the charge. Thereby the trial was brought to its logical conclusion and he was found guilty of the charge levelled against him. Simply because he wanted to be tried is no ground to deal with him differently from the way the other person was dealt with on his plea of guilt and on payment of the misappropriated amount. As transpiring from the Probation Officers report together with the annexures accompanying it, the present petitioner has already paid up the misappropriated amount. It is not necessary to deal with him differently from his co-accused in the matter of sentence. ( 8 ) ). Besides, the petitioner appears to be aged nearly 55 today. The report of the Probation Officer shows his age to be 53. That report appears to be prepared on 10/10/1990. Nearly two years have rolled by since then. The incident giving rise to the appeal appears to have occurred some time in 1985. The judgment and order of conviction was passed on 31/01/1989. The present petitioner appears to have remained on bail since then. As transpiring from the Probation Officers report the petitioner has a large family to support. Nearly two years have rolled by since then. The incident giving rise to the appeal appears to have occurred some time in 1985. The judgment and order of conviction was passed on 31/01/1989. The present petitioner appears to have remained on bail since then. As transpiring from the Probation Officers report the petitioner has a large family to support. Besides, before the Probation Officer he has regretted the incident and repented his involvement therein. In this view of the matter, I think the petitioner should be given benefit of probation without treating this as a precedent for letting such criminals off the hook so far as the matters of sentence are concerned. ( 9 ) ). In the result, this revisional application is partly accepted. The judgment and order of conviction passed by the learned trial Magistrate as affirmed in appeal by the learned Sessions Judge is maintained. Instead of subjecting the petitioner to the sentence of imprisonment, he is ordered to be released on probation on his entering into the bond for the sum of rupees five thousand for serving the sentence when called upon to do so and furnishes a surety for the like amount. He is subjected to good behaviour on probation for a period of one year from the date of his entering such bond. The order of fine is also set aside. The fine, if paid, is ordered to be refunded. The bail bonds are ordered to be cancelled. Rule is accordingly made absolute to the aforesaid extent. .