JUDGMENT : 1. Heard Mr. Rajesh Kumar Mahtha, the learned counsel appearing on behalf of the petitioner. 2. Heard Ms. Vandana Bharti, the learned A.P.P. appearing on behalf of the Opposite Party-State. 3. The present criminal revision petition is directed against the Judgment dated 02.08.2013 passed by learned Sessions Judge, Bokaro in Criminal Appeal No. 78/2013 whereby and whereunder the learned appellate court upheld the Judgment of conviction of the petitioner under Section 409 of the Indian Penal Code and modified the sentence of the petitioner to undergo Simple Imprisonment for one year and fine of Rs. 5,000/- and in default of payment of fine, the petitioner was directed to further undergo Simple Imprisonment for 15 days and dismissed the criminal appeal. 4. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated 16.04.2013 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. Case No. 23 of 2002 / Trial No. 297 of 2013 [arising out of Chas (M) P.S. Case No.02/2002 dated 08.01.2002] whereby and whereunder the petitioner was convicted for the offence under Section 409 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for 02 years and fine of Rs. 3,000/- and in default of payment of fine, to further undergo Simple Imprisonment for two months and the period undergone in jail custody during trial was directed to be set off. Arguments on behalf of petitioner 5. The learned counsel appearing for the petitioner submitted that the impugned judgments are perverse, in as much as, the entrustment of the amount of Rs. 55,000/- has not been proved by cogent evidence, as no documentary evidence to that effect has been exhibited. It was not disputed by the learned counsel for the petitioner that admittedly some oral evidence has come in connection with payment of Rs. 55,000/- to the petitioner. 6. The learned counsel further submitted that the entire dispute arises out of an agreement for execution of work executed between the petitioner-contractor and the government. The first measurement in connection with the work was taken on 15.03.1998, wherein the work was found to be done to the extent of Rs. 43,622/- and after expiry of more than one year, another measurement was taken on 28.06.1999 wherein the work was found to be executed to the extent of Rs. 17,853/- only. The first measurement in connection with the work was taken on 15.03.1998, wherein the work was found to be done to the extent of Rs. 43,622/- and after expiry of more than one year, another measurement was taken on 28.06.1999 wherein the work was found to be executed to the extent of Rs. 17,853/- only. He further submitted that the entire dispute arises out of alleged non-execution of the part of the work arising out of the agreement and the dispute falls within the realm of civil dispute. 7. He further submitted that pursuant to the order dated 19.06.2002 passed in B.A. No.1839/2002, the petitioner has deposited an amount of Rs. 37,147/- (Rs.55,000/- minus Rs.17,853/-) vide Cash Receipt No. 99 dated 16.08.2002 which has been marked as Exhibit-A. He submitted that merely because the petitioner has deposited this amount pursuant to a bail order, the same does not mean that the petitioner has admitted his guilt. 8. However, during the course of argument, the learned counsel submitted that without prejudice to the aforesaid submissions, the petitioner has no objection, if the deposited amount of Rs. 37,147/- is converted into fine and is remitted to the State. The learned counsel further submitted that the present age of the petitioner is more than 60 years and he has already remained in custody for the period from 30.01.2002 to 16.08.2002 i.e. for six and half months during trial and also from 21.09.2013 to 27.09.2013 during pendency of this criminal revision petition and he has no criminal antecedent. The learned counsel also submitted that the sentence may be confined to the period already undergone in custody by the petitioner with enhancement of the fine amount. Arguments on behalf of Opposite Party-State 9. The learned A.P.P. appearing on behalf of Opposite Party- State opposed the prayer, but at the same time, she did not dispute the fact that the dispute arises out of an agreement between the petitioner-contractor and the State and initial measurement of work dated 15.03.1998 was to the extent of Rs. 43,622/- and subsequent measurement of work was done on 28.06.1999 which was found to the extent of Rs. 17,853/-. She also did not dispute that there is no other co- accused in the present case. 43,622/- and subsequent measurement of work was done on 28.06.1999 which was found to the extent of Rs. 17,853/-. She also did not dispute that there is no other co- accused in the present case. She also submitted that if this Court is inclined to pass an order as submitted by the learned counsel for the petitioner, then in such circumstances, the fine amount of Rs. 5,000/- may be directed to be maintained and the aforesaid amount of Rs. 37,147/- deposited by the petitioner vide Cash Receipt dated 16.08.2002 may be directed to be retained by the State. Findings of this Court 10. After hearing the learned counsel appearing for the parties and going through the impugned judgments as well as the lower court records of the case, this Court finds that the prosecution case is based on the written report dated 04.01.2002 lodged by the Informant-Block Development Officer, Chas (P.W.-2) alleging inter-alia that as reported vide Letter No. 2846 dated 18.12.2001 issued by the Deputy Commissioner, Bokaro and Letter No. 651 dated 07.12.2001 issued by the Sub-Divisional Officer, Chas, the petitioner-Contractor was entrusted with the work of bridge construction from Sindur Peti Road to Dabka Road under Yojna No. 7/97-98 under Jawahar Rojgar Yojna and against the estimated cost of Rs. 94,000/- for construction, an amount of Rs. 55,000/- was taken as advance by the petitioner, but he did the work to the extent of Rs. 17,853/- only and he committed embezzlement of Rs. 37,147/- and did not complete the government work. 11. On the basis of the written report, the case was registered Chas (M) P.S. Case No.02/2002 dated 08.01.2002 (G.R. No. 23/2002) under Section 409 of the Indian Penal Code and after completion of investigation, charge-sheet was submitted against the petitioner under the same section and on 03.05.2002, cognizance of the offence was taken against him under the same section. 12. On 12-06-2002, the charge was framed against the petitioner under Section 409 of the Indian Penal Code which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 13. In course of trial, the prosecution examined altogether 07 witnesses to prove its case. 12. On 12-06-2002, the charge was framed against the petitioner under Section 409 of the Indian Penal Code which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried. 13. In course of trial, the prosecution examined altogether 07 witnesses to prove its case. P.W.-1 is Ram Vinay Sharma, P.W.-2 is Jagbandhu Mahatha, Block Development Officer, Chas who is the Informant of the case, P.W.-3 is Manu Kapardar, P.W.-4 is Samnendra Nath Pathak, P.W.-5 is Nand Lal Pathak, P.W.-6 is Safdar Ali who has been declared hostile by the prosecution and P.W.-7 is Md. Jamaluddin Ansari who has also been declared hostile by the prosecution. 14. The prosecution exhibited some documents as documentary evidence. Exhibit-1 is the sanction accorded for an estimate of Rs.94,000/- by A.E., Chas, Exhibit-2 is Page Nos. 3, 4 and 5 of Measurement Book, Exhibit-3 is signature of A.E. Ajit Kumar on Measurement Book, Exhibit-4 is signature of A.E. Sarju Prasad on Measurement Book, Exhibit-5 is order dated 23.06.1999 on Measurement Book, Exhibit-6 is a note dated 16.10.2001 regarding measurement upto Rs.17,853/-, Exhibit-7/A is a note dated 10.12.2001 on Page Nos.7 and 27 of the record, Exhibit-8 is order-sheet dated 09.12.2001 giving last opportunity to the petitioner, Exhibit-8/1 is note regarding non-completion of work, Exhibit-9 is signature of the Informant on the written report, Exhibit-10 is notice dated 11.11.1998, Exhibit-10/1 is notice dated 30.05.1999, Exhibit-10/2 is notice dated 15.06.1999, Exhibit-11 is agreement, Exhibit-11/1 is signature of Sameshwar Ram on agreement and Exhibit-12 is Page No. 2 to 6 of order-sheet of Yojna No.7/97-98. 15. The statements of petitioner under Section 313 of Cr.P.C. were recorded wherein the petitioner simply denied the incriminating evidences put to him and claimed to be innocent. The petitioner did not adduce oral evidence, but he exhibited a peremptory cash receipt No. 99 dated 16.08.2002 of the Cashier, Civil Court, Bokaro with regard to deposit of Rs. 37,147/- as Exhibit-A pursuant to the order dated 19.06.2002 passed in B.A. No.1839/2002. 16. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution, the documentary evidence adduced on behalf of the defence, the arguments advanced on behalf of the parties and recorded its findings at Para-14 of its judgment. 37,147/- as Exhibit-A pursuant to the order dated 19.06.2002 passed in B.A. No.1839/2002. 16. This Court finds that the learned trial court considered the oral and documentary evidences adduced on behalf of the prosecution, the documentary evidence adduced on behalf of the defence, the arguments advanced on behalf of the parties and recorded its findings at Para-14 of its judgment. The learned trial court recorded that the prosecution has examined altogether seven witnesses and has exhibited documents from Exhibit-1 to Exhibit-11/1. P.W.-2, the Informant has fully supported the prosecution case and P.W.-1 and P.W.-3 have corroborated the evidence of the Informant. The defence has failed to elicit any material facts and contradictions during their cross-examination to discredit their evidences. The learned trial court further recorded that the documents exhibited by these witnesses have fully corroborated the oral evidence adduced on behalf of the prosecution. P.W.-4 and P.W.-5 have partly supported the prosecution case to the extent that the petitioner did not complete the work. The learned trial court also recorded that the Investigating Officer has not been examined, but the defence has failed to bring any facts which would affect the prosecution case due to non-examination of the Investigating Officer. The learned trial court rejected the contention advanced on behalf of the petitioner that no offence is made out against the petitioner as after institution of the F.I.R., he has already deposited an amount of Rs. 37,147/- vide Cash Receipt No. 99 dated 16.08.2002 (Exhibit-A) pursuant to the order dated 19.06.2002 passed in B.A. No.1839/2002. The learned trial court further recorded that deposit of Rs. 37,147/- vide Cash Receipt No. 99 dated 16.08.2002 (Exhibit-A) establishes the case of the prosecution that the petitioner did not complete the work within the stipulated period. 17. This Court further finds that the learned appellate court also considered the oral and documentary evidences adduced by the prosecution, documentary evidence of the defence and also arguments advanced on behalf of both the parties and recorded its findings in Paras-9 and 10 which read as under: “9. The main allegation against the appellant is that the work was not completed by him and against an advance of Rs. 55,000/-, only work of Rs. 17,853/- was completed. P.W.-1 is the Junior Engineer who made the measurement of the work done which has been proved as Exhibit-3. The main allegation against the appellant is that the work was not completed by him and against an advance of Rs. 55,000/-, only work of Rs. 17,853/- was completed. P.W.-1 is the Junior Engineer who made the measurement of the work done which has been proved as Exhibit-3. This was contrary to the inflated bill submitted by Junior Engineer Sarju Prasad on 15.03.1998 for a sum of Rs.43,622.92. From the actual measurement, the net worth of the work done came to Rs. 17,853/-, This measurement was confirmed by Assistant Engineer, Ajit Kumar. In this regard, inspection note of Junior Engineer Krishna Tiwary has also been adduced into evidence as Exhibit-6. This part of the prosecution case has been corroborated by the then B.D.O., Jagbandhu Mahatha. P.W.-2, Panchayat Sewak P.W.-3 has specifically stated that notice exhibit-10/1 and 10/2 was issued regarding the incomplete work to the contractor Badal Candra pathak on 30.05.99 and 15.06.99. apart from the official witness, local villagers P.W.-4 and P.W.-5 have also corroborated this part of the prosecution case. 10. The only defence against this is that the balance amount of Rs.37,147/- has been deposited by this appellant. But this by itself cannot wipe out the offence.” 18. On scrutiny of the evidences of the prosecution witnesses and the documentary evidence adduced on behalf of the petitioner, this Court finds that P.W.-2 is the Informant of the case and he deposed that the work under Scheme No. 7/97-98 under Jawahar Rojgar Yojna was allotted to the petitioner-contractor and under this scheme, a culvert was to be constructed on the road and repair work of the road was also to be done at an estimate cost of Rs.94,480. Rs.55,000/- was paid to the petitioner as advance, but when the work was not completed, the record was called from the Gram Panchayat which revealed that against the advance of Rs. 55,000/-, work of Rs. 17.853/- only had been completed. He further deposed that after inspection made by officer, an allegation of embezzlement of government fund was found to be true against the petitioner. 19. This Court further finds that P.W.-2 has fully supported his statements made in the written report and P.W.-1 and P.W.-3 have fully corroborated the evidence of the informant and P.W.-4 and P.W.-5 have partly supported the prosecution case to the extent that the petitioner did not complete the work. 20. 19. This Court further finds that P.W.-2 has fully supported his statements made in the written report and P.W.-1 and P.W.-3 have fully corroborated the evidence of the informant and P.W.-4 and P.W.-5 have partly supported the prosecution case to the extent that the petitioner did not complete the work. 20. This Court further finds that admittedly, the petitioner was a contractor and he was allotted the work of bridge construction under Yojna No. 7/97-98 under Jawahar Rojgar Yojna, but he did not complete the allotted work within the stipulated period. 21. The learned courts below have recorded consistent findings of facts that the petitioner was given fund of Rs. 55,000/- but he neither execute the work to the extent of Rs. 55,000/- nor return the balance amount, as work to the extent of Rs. Rs.17,853/- only was executed by the petitioner, and the petitioner did not return any amount relating to the work not completed, before institution of the criminal case against him. 22. This Court is of the considered view that after institution of F.I.R., the deposit of an amount of Rs. 37,147/- (Rs.55,000/- minus Rs.17,853/-) vide Cash Receipt No. 99 dated 16.08.2002 made by the petitioner pursuant to the order dated 19.06.2002 passed by this Court in B.A. No.1839/2002 would not absolve him from offence under Section 409 of the Indian Penal Code. 23. So far as the argument of the learned counsel for the petitioner regarding non-receipt of advance of Rs. 55,000/- for the work is concerned, this Court finds that there is evidence on record regarding disbursement of the said amount to the petitioner. P.W.-1 has clearly deposed that an amount of Rs. 55,000/- was given to the petitioner as advance for the work, but he was not cross-examined by the defence in spite of opportunity given for cross-examination. P.W.-2, P.W.-3 and P.W.-4 have also made similar statement in their evidence, but there is nothing in the cross-examination to disbelieve these witnesses on the point. The learned courts below have found the evidences of the aforesaid witnesses reliable and have interalia recorded consistent finding of fact after due consideration of evidences on record that an amount of Rs. 55,000/- was paid to the petitioner as advance for execution of work involved in this case. The learned courts below have found the evidences of the aforesaid witnesses reliable and have interalia recorded consistent finding of fact after due consideration of evidences on record that an amount of Rs. 55,000/- was paid to the petitioner as advance for execution of work involved in this case. Further, the learned courts below have given finding that upon measurement on 28.06.1999 work was found executed only to the extent of Rs. 17,853/-. The learned courts below have also given finding that Exhibit-2 is the measurement dated 15.03.1998 by Junior Engineer, Surju Prasad who had prepared an inflated bill of Rs. 43,622.92. Admittedly, the Investigating Officer of the case has not been examined, but the learned court below was of the view that non-examination of the Investigating Officer has not caused any prejudice to the petitioner. 24. This Court finds that the learned courts below have passed well-reasoned judgments convicting the petitioner under Section 409 of the Indian Penal Code. 25. In view of the aforesaid facts and findings, considering the limited powers to re-appreciate evidences under revisional jurisdiction, this Court finds no valid ground or any irregularity or perversity to interfere with the judgment of conviction passed by the learned trial court and upheld by the learned appellate court and accordingly, the conviction of the petitioner under Section 409 of IPC is hereby affirmed. Accordingly, Challenge to the conviction of the petitioner is hereby rejected. 26. So far as the sentence is concerned, this Courts finds that the petitioner is about 60 years of age and the work agreement is of the year 1998, and F.I.R. was lodged in the year 2002 alleging defalcation of an amount of Rs. 37,147/- which the petitioner had deposited under peremptory cash receipt vide No. 99 dated 16.08.2002 pursuant to the bail order. The petitioner has already remained in custody for the period from 30.01.2002 to 16.08.2002 i.e. for six and half months during trial and also from 21.09.2013 to 27.09.2013 during pendency of this criminal revision petition. The petitioner has no criminal antecedent, and has faced the rigours of the criminal case for more than 18 years. This Court is of the view that ends of justice would be served, if the substantive sentence of the petitioner is modified and reduced to the period already undergone by him and the fine amount is enhanced. The petitioner has no criminal antecedent, and has faced the rigours of the criminal case for more than 18 years. This Court is of the view that ends of justice would be served, if the substantive sentence of the petitioner is modified and reduced to the period already undergone by him and the fine amount is enhanced. Accordingly, the sentence imposed upon the petitioner is reduced to the period already undergone by him in custody and the fine amount is enhanced to Rs. 50,000/-. 27. The amount of Rs. 37,147/- deposited by the petitioner at the time of his bail is to be adjusted against the fine amount and the differential fine amount is to be deposited by the petitioner before the learned court below within two months from today failing which the bail bond furnished by the petitioner will stand cancelled and he would serve the sentence already imposed by the learned courts below. 28. Upon deposit of the fine amount as directed above, the bailors of the petitioner will stand discharged from the liability under the bail bonds. The learned court below shall issue notice upon the Block Development Officer, Chas and remit the entire fine amount to the account of the Block Development Officer, Chas. 29. Accordingly, with the aforesaid findings, modification in the sentence of the petitioner and the directions, the present criminal revision petition is hereby disposed of. 30. Pending interlocutory applications, if any, are closed. 31. Let the Lower Court Records be sent back to the learned Court concerned. 32. Let this Judgment be communicated to the learned court concerned through ‘FAX/e-mail’.