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2001 DIGILAW 1692 (RAJ)

Brij Lal v. State of Rajasthan

2001-10-12

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This revision petition has been filed by the accused petitioner against the judgment dated 25.4.88, passed by the learned Additional Sessions Judge, Raisingh Nagar by which the learned Additional Sessions Judge affirmed the judgment and order dated 25.4.84 passed by the learned Additional Chief Judicial Magistrate, Rai Singh Nagar in Criminal Case No. 476/80 whereby the learned Additional Chief Judicial Magistrate convicted the accused petitioner for offence under Sec. 408 I.P.C. and sentenced him as under:- OFFENCE UNDER SECTION SENTENCE AWARDED 408 I.P.C. 18 Months R.I. and a fine of Rs. 4000/- in default to further undergo 9 months R.I. (2). It arises in the following circumstances: (i) On 22.3.78, P.W. 9 V.V. Dixit Executive Officer, Sri Ganganagar Central Sahkari Bank Ltd. Lodged a written report Ex.P/12 before Police Station Gajsinghpur to the effect that in the year 1974-75 and from 1.7.75 to 19.4.76, special audit was done by P.W. 7 K.N. Joshi and it was found that the present accused petitioner misappropriated Rs. 3150/- on 4.8.75 and that amount was taken by the accused petitioner in the capacity as Manager of the Kraya Vikraya Sahkari Samiti and the amount was deposited by two persons, namely Karnail Singh P.W. 1 and Kishan Singh. The audit report is Ex.P/10. (3). On the report Ex.P 12 the police chalked out regular FIR and started investigation. (4). The accused petitioner was arrested on 26.7.78 through Fard Ex.P/15 and after usual investigation, a challan for offence under Sec. 408 I.P.C. was filed against the accused petitioner. (5). That on 8.7.81, the learned trial Magistrate framed charge for offence under Sec. 408 I.P.C. against the accused petitioner who denied the same and claimed trial. (6). After conclusion of the trial the learned trial Magistrate through his judgment and order dated 25.4.84 convicted the accused petitioner for offence under Sec. 408 I.P.C. and sentenced him as stated above. (7). Against the judgment and order dated 25.4.84 passed by the learned Magistrate, the accused petitioner preferred an appeal before the learned Additional Sessions Judge, Rai Singh Nagar and the learned Additional Sessions Judge, Raisingh Nagar vide judgment dt. 25.4.88 dismissed the appeal filed by the accused petitioner. (8). Aggrieved from the judgment dated 25.4.88, the present revision petition has been filed. (9). 25.4.88 dismissed the appeal filed by the accused petitioner. (8). Aggrieved from the judgment dated 25.4.88, the present revision petition has been filed. (9). In this revision petition the learned counsel for the accused petitioner has not challenged the findings of conviction for offence u/Sec. 408 I.P.C. recorded against the accused petitioner by the learned Additional Chief Judicial Magistrate and affirmed in appeal by the learned Additional Sessions Judge but it has been argued on behalf of the accused petitioner that looking to the fact that the accused petitioner has remained in jail in the present case from the period from 26.7.78 to 31.7.78 and 25.4.88 to 22.7.88 and service of the petitioner had been terminated by the Samiti, and further more the incident took place in the year 1975 and more than 25 years have elapsed therefore, it would be just and proper that the accused petitioner should be given benefit under Sec. 4 of the Probation of Offenders Act. (10). I have heard both and gone through the record of the case. (11). Singh the findings of conviction for offence u/Sec. 408 I.P.C. recorded by the learned Additional Chief Judicial Magistrate, Rai Singh Nagar and affirmed in appeal by the learned Additional Sessions Judge Rai Singh Nagar against the accused petitioner have not been challenged in this revision petition, there, this revision petition against the conviction is liable to the dismissed. (12). There is no dispute in this case that the amount for which charge of misappropriation was levelled against the accused petitioner was of Rs. 3150/-. This amount itself is meagre amount and for that the accused petitioner had remained in PC/JC for more than 5 months and looking to the fact that the services of the petitioner had already been terminated by the Samiti and 25 years have elapsed and having regard to the circumstances of the case and nature of offence and also character of the offender, it is expedient that the accused petitioner should be dealt with under the Probation of Offenders Act. (13). Under Sec. 4 of the Probation of Offenders Act nature of offence is one of the major criteria for determining whether benefit of this provision should be given to the concerned offender or not. (13). Under Sec. 4 of the Probation of Offenders Act nature of offence is one of the major criteria for determining whether benefit of this provision should be given to the concerned offender or not. His age would be another relevant factor and the circumstance in which the offence was committed may be 3rd important consideration and all the important considerations have been mentioned the narrated above. (14). On the point whether provisions of Probation of Offenders act are applicable to the offence punishable under Sec. 408 I.P.C. or not, for that it may be stated here that such provisions are not applicable for offence under Sec. 409 I.P.C. as held by Honble Apex Court in the case of Somnath vs. State of Rajasthan (1). (15). But in my opinion, for offence under Sec. 408 I.P.C. provisions of Probation of Offenders Act may be applicable looking to the facts and circumstances of each case as the sentence for offence under Sec. 408 I.P.C. is neither death nor imprisonment for life. Punjab High Court in the case of Parmeshwar vs. State of Punjab (2), extended benefit of provisions of Probation of Offenders Act in the case of conviction for offence under Sec. 408 I.P.C. (16). Thus having regard to the circumstances of the case and nature of offence and also character of the offender, it is proper to release the accused petitioner on probation. Accordingly this revision petition filed by the accused petitioner Brij Lal against his conviction for offence under Sec. 408 I.P.C. recorded by the learned Additional Chief Judicial Magistrate, Rai Singh Nagar vide his judgment dated 25.4.84 and affirmed in appeal by the learned Additional Sessions Judge Raisingh Nagar vide judgment dated 25.4.88 is dismissed. (ii) However, sentence awarded to the accused petitioner for offence under Section 408 I.P.C. by the learned Additional Chief Judicial Magistrate, Raisingh Nagar vide his order dated 25.4.84 and affirmed in appeal by the learned Additional Sessions Judge, Rai Singh Nagar vide judgment dated 25.4.88 is set aside and instead of sentencing the accused petitioner for the aforesaid offence, I direct that he be released on probation under Sec. 4 of the Probation of Offenders Act, 1958 provided he executes a personal bond in the sum of Rs. 10000/- only with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Raisingh Nagar within a period of three months from today and to keep peace and be of good behavior for a period of one year. Since the accused petitioner is on bail, he need not surrender. His bail bonds are hereby cancelled.