Judgment : Heard both the parties. 2. The above revision is directed against the order of conviction and sentence dated 25.1.1995 in C.A.No.76 of 1994 on the file of the learned District Sessions Judge, Nagapattinam confirming the order of conviction and sentence of learned Judicial Magistrate, Mannargudi, Nagai Quaid-e-Milleth District, dated 8.7.1994 in C.C.No.544 of 1991, for the offence punishable under Sec.409 (4 counts), I.P.C, sentencing him to undergo eight months simple imprisonment, with a fine of Rs. 500 in default, 50 days simple imprisonment for each count, all to run concurrently. 3. The petitioner was facing trial for the offence punishable under Sec.409 (4 counts) I.P.C. in C.C.No.544 of 1991 before the learned Judicial Magistrate, Mannargudi, for the alleged occurrence said to have taken place on 6.12.1983, 23.12.1984, 5.11.1985 and 10.7.1986 when the petitioner withdrew a sum of Rs.1077.55, 1077.60, 1077.60 and 9938.00 respectively, totalling to a sum of Rs.13,170.75, on behalf of P.W.2, by using withdrawal slip duly and knowlingly signed by P.W.2, when he has working as a public servant in Mullaivasal Village postoffice during the period 30.12.1982 and 10.7.1982, but not handed over the said amount to P.W.2, after the same was withdrawn. 4. On behalf of the prosecution, four witnesses were examined as P.Ws.1 to 4 and four documents were filed as Exs.P-1 to P-4. If is suffix to mention that P.W.1 is the brother of P.W.2. 5. The learned Judicial Magistrate, Mannargudi in his order dated 8.7.1994 in C.C.No.544 of 1991 in the light of the evidence of P.Ws.1 to 4 and Exs.P-1 to P-4, convicted the petitioner for the offence punishable under Sec.409 (4 counts) I.P.C. namely for the said four independent withdrawal, and sentenced him to undergo eight months simple imprisonment with a fine of Rs.500 in default, fifty days simple imprisonment for each count, all to run concurrently, and the same was, on appeal in C.A.No.76 of 1994, by an order dated 25.1.1995 confirmed by the learned District and Sessions Judge, Nagapattinam. Hence, the above revision. 6. Hence, the above revision. 6. The learned counsel for the petitioner forcibly challenges the order of conviction and sentence on the following grounds; (i) In view of the clear and unambiguous testimony of P.W.2, who was a graduate and an account holder, had knowingly signed the withdrawal slips on the said dates namely 6.12.1983, 23.12.1984, 5.11.1985 and 10.7.1986 and handed over the same to the petitioner to withdraw a sum of Rs.1077.55, 1077.60, 1077.60 and 9938.00 respectively and accordingly the same was withdrawn, but, however, without her knowledge, her brother, P.W.1, had given a complaint; (ii) The said cause of action falls in the year 1983 to 1986, while the complaint was preferred only in the year 1991, which would reflect that there was neither genuine grievance by P.W.2 nor no mala fide intention by the petitioner, as the entire withdrawal has been done with a proper knowledge and approval of P.W.2. (iii) There was no complaint by P.W.2 that the petitioner either refused to hand over the amount withdrawn- or misappropriated the amount or committed criminal breach of trust entrusted by P.W.2 or the said amount was disposed in violation of any direction of law prescribing the mode in which such trust was to be discharged or there was any complaint that the petitioner has cheated P.W.2 and (iv) The implicity understanding between petitioner and P.W.2 should be given proper respect and weightage before charging him for an offence punishable under Sec.409, I.P.C. as P.W.2 herself was not given the complaint since she never felt that she was cheated or her money was misappropriated or the petitioner committed criminal breach of trust. 7. The learned counsel for the petitioner contends that the case of the prosecution is clouded with imaginary assumptions and presumptions forgetting the reality of understanding between the petitioner and P.W.2, as she categorically states that without her knowledge, her brother has made a complaint, which would prove that more than the charge levelled against the petitioner on behalf of P.W.2, the understanding between the petitioner and P.W.2 is greater and deeper. Hence, he claims that the petitioner is entitled for an acquittal. 8. Hence, he claims that the petitioner is entitled for an acquittal. 8. Per Contra, learned Government Advocate contends that the petitioner being incharge of Village Post Office and entrusted with the maintenance of Public accounts should not misuse the confidence of P.W.2 and make use of the withdrawal slips assuming the same was knowingly signed by P.W.2 and take undue advantage by using the amount withdrawn without returning to P.W.2. 9. The learned Government Advocate also contends that since the petitioner was working as a public servant and only on account of the post he was holding, P.W.2, gave the withdrawal slip to him believing his statement that he would withdraw the amount and handover the same to P.W.2, he is expected to complete his promise by returning the amount withdrawn from the post office. Having failed to do so, the petitioner had squarely committed criminal breach of trust punishable under Sec.409, I.P.C. 10. The learned Government Advocate further contends that mere want of a complaint by P.W.2 or an allegation by P.W.2 that the petitioner has misappropriated the amount or refused to hand over the amount much less the petitioner had cheated P.W.2, will not eschew him for the offence punishable under Sec.409, I.P.C. He also states that in the absence of any plea or evidence on record, on behalf of the defence, as to the personal relationship or understanding between the petitioner and P.W.2 which was sought to be sabotage by P.W.1, cannot be given any weightage while trying an offence against the petitioner, which has been duly proved by the prosecution with sufficient evidence and materials on record. 11. I have given careful consideration to the submissions of both the sides. 12. At the outset, I do not propose to go into the merits and demerits, much less any assumption or presumption as to the so-called understanding between the petitioner and P.W.2, as claimed by the petitioner or objected by the prosecution, as the same is totally outside the scope of the trial. However, in the light of the evidence on record, 1 am obliged to observe that P.W.2, a graduate, who was holding an account, had categorically stated that she signed the withdrawal slip with her full knowledge and handed over the same to the petitioner to withdraw the amount, which was subsequently withdrawn but not handed over to P.W.2. However, in the light of the evidence on record, 1 am obliged to observe that P.W.2, a graduate, who was holding an account, had categorically stated that she signed the withdrawal slip with her full knowledge and handed over the same to the petitioner to withdraw the amount, which was subsequently withdrawn but not handed over to P.W.2. It is clear that the petitioner, as a public servant, has not committed any misappropriation of fund or criminal breach of trust or there was any allegation for cheating, but still the fact remains that he has not kept his individual promise to P.W.2, to hand over the amount after withdrawing the same, which would definitely attract Sec.406, I.P.C. if not, constitute an offence punishable under Sec.409, I.P.C. 13. I am satisfied that to this extent, the petitioner is punishable for the offence under Sec.406, I.P.C. Hence, the order of conviction of the courts below, convicting the petitioner for the offence punishable under Sec.409 (4 counts), I.P.C. are set aside but however-, the petitioner is convicted for the offence punishable under Sec.406 (4 counts) I.P.C. with regard to the punishable, it is relevant to refer that P.W.2 is also equally responsible for giving a free hand to the petitioner to withdraw the amount and keeping the same with him for years together till a complaint was made by her brother, namely P.W.1, of course, without her knowledge. Considering the peculiar facts and circumstances of the case, 1 am obliged to invoke Sec.4(1) of the Probation of Offenders Act and direct the petitioner to be released on probation of good conduct, on his entering into a bond for a sum of Rs.1,000 with one surety to appear and receive sentence when called upon during a period of six months, and in the meantime to keep the peace and be of good behaviour. In this connection, I also make it clear that as contemplated under Sec. 12 of the Probation of Offenders Act, the petitioner shall not suffer disqualification, if any, attaching to this conviction. 14. In the result, revision is ordered accordingly. No costs.