( 1 ) THE petitioner impugns the order dated 21st may, 1985 passed by the learned Chief Judicial Magistrate, Parbhani, in Regular criminal Case No. 78/1983 convicting the petitioner of the offence punishable under section 409 of the Indian Penal Code and sentencing him to suffer RI for three years and a fine of Rs. 50,000/- in default. RI for one year; and the order passed by learned Additional Sessions Judge, Hingoli at Court dated 13-2-1998, by which the appeal is partly allowed, convicting the petitioner of the offence punishable under section 408, Indian Penal Code and reducing the imprisonment to one year. ( 2 ) BRIEFLY stated, the facts are that staff of Adarsha Mahavidyalaya, formed a Credit Society by name and style adarsha College Staff Co-operative Credit society Limited, Hingoli" (hereinafter referred to as "the Society") consisting of 34 Lecturers, 15 Clerks and 20 Peons. The members who were in need of money, used to borrow loan from this Society. Monthly instalments used to be worked out whereas, amount used to be deducted from the salary of the members. The principal of the College used to issue cheques in favour of the Secretary of the society on the College account. After the amount is withdrawn, the Secretary used to deposit the amount with District Central Co-operative Bank (hereinafter referred to as the DCC Bank" ). On deposit of this amount, the additional amount of loan used to be disbursed by the Bank. One of the members of the staff, used to work as Secretary of the Society and performed duties of Secretary as required by the Bye-Laws. During the relevant period between 5th November, 1979 and 28th April, 1980. PW 6 Principal-Mantri, issued 13 cheques amounting to Rs. 70,000/ -. The cheques were encashed by the petitioner. Out of Rs. 70,000/-, petitioner deposited amount of Rs. 21,000/- and odd with the DCC Bank; however did not make payment of Rs. 49,633. 15. Therefore, DCC Bank did not release the amount due for the disbursement of loan. A letter was sent to the society that as the earlier outstanding instalments are not deposited, further payments cannot be made. After receipt of this intimation from DCC Bank, enquiries were conducted. It was found that petitioner has committed defalcation. 49,633. 15. Therefore, DCC Bank did not release the amount due for the disbursement of loan. A letter was sent to the society that as the earlier outstanding instalments are not deposited, further payments cannot be made. After receipt of this intimation from DCC Bank, enquiries were conducted. It was found that petitioner has committed defalcation. A meeting of the Managing body of the society was called and it was decided that action should be taken against the petitioner. In pursuance of this resolution, intimation was given to the concerned authority. PW 8 - Manohar Haridas, who is a Co-operative Officer, conducted enquiries on the directions of his superiors, in respect of the transactions of the society on 10th May, 1980 and 11th May, 1980, that too in the presence of petitioner. The Co-operative Officer found that defalcation is committed. He, therefore, filed a complaint (Exh. 46) with Hingoli town Police Station. After completion of investigation, charge-sheet came to be filed against the petitioner. At the conclusion of trial, learned trial Judge found that petitioner has committed defalcation, in his capacity as a "public Servant". He, therefore, convicted the petitioner by his order dated 21-5-1985 for offence punishable under section 409, Indian Penal Code, and sentenced him to pay a fine of Rs. 50,000/- in default, to suffer RI for 1 year, with a direction that if the amount of fine is deposited this amount should be paid to the Chairman of the society, of course, after expiry of appeal period. ( 3 ) THE matter was carried in appeal. Learned Additional Sessions Judge, hingoli, partly allowed the appeal, thereby altering conviction of offence punishable under section 408, Indian Penal Code and reducing sentence of imprisonment from 3 years to 1 year of RI, by order dated 13-2-1998. This order of conviction and sentence is impugned by the petitioner, in the present Revision. ( 4 ) LEARNED counsel for petitioner contended that cheques issued by the principal were drawn on the account of the College. These were issued in the personal name of petitioner. In fact, petitioner had deposited amount with the principal. The petitioner is not charged for having committed defalcation of the cash belonging to the College. Therefore, charge in respect of defalcation of the amount of the Society cannot be sustained and the petitioner deserves acquittal. These were issued in the personal name of petitioner. In fact, petitioner had deposited amount with the principal. The petitioner is not charged for having committed defalcation of the cash belonging to the College. Therefore, charge in respect of defalcation of the amount of the Society cannot be sustained and the petitioner deserves acquittal. ( 5 ) PER contra, learned APP Shri S. P. Dound, has pointed out evidence of the PW-6 Shri Mantri to show that the letter of the Bank of Maharashtra from where the cash is withdrawn by petitioner, Exh. 35 gives details of the amount withdrawn under 13 cheques. The total amount withdrawn is Rs. 70,000. It is contended that there is no dispute about withdrawal and the defence of the petitioner that he had returned the amount to the Principal is already rejected by the Courts below. According to learned APP, the evidence on record, does establish defalcation by the petitioner in his capacity as Secretary of the Society. Therefore, no interference is called for in the impugned order. ( 6 ) LEARNED counsel for petitioner has submitted that from the evidence of pw 3-Vishwanath Shinde, it is quite apparent that salary of the teachers used to be paid by cheques. Had it been that the amount withdrawn were for re-payment of the loanborrowed by individual lecturers, then they would have given cheques. There was no evidence on record to show that deductions could have been made by the Principal from the Secretary. The contention of learned counsel is based on the fact that the prosecution has not elaborated on this aspect. It is to be borne in mind that Principal had issued 13 cheques for Rs. 70,000/- during the relevant period and this amount was withdrawn by the petitioner. This fact has been firmly established by the evidence of PW 6 Principal, Mantri who has produced the letter Exh. 35, received from Bank. The letter was sent during the regular course of business between two institutions. This being correspondence in the regular course, the letter is very much admissible in evidence. It is also pertinent to bear in mind that no objection as regards admissibility of document is taken at any stage. Therefore, the fact remains that amount of Rs. 70,000 was withdrawn by petitioner by encashment of 13 cheques issued in his name by the principal. It is also pertinent to bear in mind that no objection as regards admissibility of document is taken at any stage. Therefore, the fact remains that amount of Rs. 70,000 was withdrawn by petitioner by encashment of 13 cheques issued in his name by the principal. So far as the defence that the amount was given to Principal is concerned, the defence is rightly rejected though the reasons given may not be logical. There is no dispute that out of Rs. 70,000 some of the amount, roughly coming to Rs. 20,000/- is deposited by petitioner in DCC Bank. This fact shows that amounts withdrawn were not returned to the Principal. It can be seen from the evidence of PW-8 Manohar Haridas that opportunity was given to the petitioner to submit an explanation during the course of enquiry. Petitioner, however, refused to complete the writing of accounts. Be that, as it may; it can be seen that the findings recorded by the trial Court as well as Appellate Court are based on the logical appreciation of evidence of record. Therefore, this findings cannot be condemned as perverse. ( 7 ) LEARNED counsel for petitioner has contended that when the Appellate court came to the conclusion that offence established is under section 408 and not under section 409 Indian Penal Code, the proper course was to remand the matter back. For this purpose, reliance is placed on the ruling of this Court reported in 1996 (1) Mh. LJ. 167 in the matter of Bhujangrao Madhavrao kulkarni and others vs. State of Maharashtra. In that case, the accused were tried before Special Judge, for offence punishable under section 5 (l) (c) and 5 (l) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947 and other offences, such as, sections 420, 467, 468 and 120-B read with section 34, Indian penal Code, by Special Judge. It was found that the accused being office-bearer of the Co-operative Society was not a "public servant", within the meaning of section 21 of the Indian Penal Code. The matter was remanded, by setting aside the conviction recorded by the Special Judge directing de novo trial. This decision is not applicable to the facts of the present case. In that case, trial was by a Special Judge who had jurisdiction to try only the "public servants". The matter was remanded, by setting aside the conviction recorded by the Special Judge directing de novo trial. This decision is not applicable to the facts of the present case. In that case, trial was by a Special Judge who had jurisdiction to try only the "public servants". Once it is shown that the accused was not public servant, Special Judge had no jurisdiction to conduct the trial. In this background, direction is given for de novo trial. In the present case, the Appellate Court has modified the conviction and instead of convicting petitioner under section 409, the conviction under section 408, Indian penal Code is upheld. It is not in dispute that the offence punishable under section 408 is lesser offence of the same kind as that of offence punishable under section 409, Indian Penal Code, therefore, such a course is permissible in view of section 222 (1) and (2) of the Criminal Procedure Code, 1973. As such, contention of learned counsel that matter be remanded for de novo trial is clearly unsustainable. ( 8 ) LEARNED counsel for petitioner has submitted that a direction for making payment to the Chairman of the Society and the Society from the amount of fine deposited by the petitioner, therefore, having regard to the passage of time leniency be shown and the sentence of imprisonment be reduced to the sentence already undergone. The fact that petitioner has suffered ordeal of the trial for so many years is relevant for the consideration of determination of quantum of sentence. Learned counsel has rightly pointed out that society is to be reimbursed from the fine amount. It can be seen that the lower Appellate Court hasalready reduced the sentence of imprisonment from three years to one year. The sentence should always be commensurate with the guilt proved. Reference is made to one of the mitigating circumstance that petitioner is suffering agony of the litigation since 1983 as the defalcation had taken place sometime in 1980. This mitigating circumstance does entitle petitioner to some leniency. However, contention that sentence be reduced to the sentence already undergone cannot be sustained. However, considering facts of the present case, the ends of justice would be met if sentence of imprisonment is reduced from one year to six months of R. I. In this view of the matter, the Revision is partly allowed. However, contention that sentence be reduced to the sentence already undergone cannot be sustained. However, considering facts of the present case, the ends of justice would be met if sentence of imprisonment is reduced from one year to six months of R. I. In this view of the matter, the Revision is partly allowed. The order of conviction recorded by the lower Appellate Court is maintained. Order imposing sentence is modified by reducing the sentence of imprisonment to six months. Rule is made absolute in above terms. The petitioner shall surrender to his bail before the lower Court on or before 10th April, 2006, for serving remaining sentence. The amount of fine if not paid, shall be recovered from the petitioner. ( 9 ) DUE to inadvertence, the office has not issued writ, hence, time for surrendering is extended by two weeks i. e. upto 26th April, 2006. Intimation be given immediately to the lower Court telephonically, in addition to usual mode. Order accordingly.