JUDGMENT : Heard Mr. Gautam Kumar, learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Ravi Prakash, learned counsel appearing on behalf of the opposite party- State. 3. The present criminal revision petition is directed against the judgment dated 05.12.2013 passed in Criminal Appeal No. 94 of 2013 by the learned Principal Sessions Judge, Sahebganj, whereby the appeal filed by the petitioner has been dismissed. The appeal was filed against judgment of conviction and order of sentence dated 02.08.2013 passed by the learned S.D.J.M., Rajmahal in G.R. Case No. 61 of 2011 corresponding to T.R. No. 744 of 2013 whereby the petitioner was held guilty of offence under Sections 406/409 of Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for a period of three years under Section 409 of Indian Penal Code with a fine of Rs. 10,000/- and in default of payment of fine, the petitioner was directed to undergo Simple Imprisonment for two months. Further, for the offence under Section 406 of Indian Penal Code, the petitioner was sentenced to undergo Rigorous Imprisonment for a period of three years with a fine of Rs. 10,000/- and in default of payment of fine, the petitioner was directed to undergo Simple Imprisonment for two months. All the sentences were directed to run concurrently. Arguments of the petitioner 4. Learned counsel appearing on behalf of the petitioner has submitted that from the perusal of the impugned judgments, it appears that the petitioner was head teacher-cum-secretary of the school and P.W. 2 was the chairman of Gram Shiksha Samiti. He further submits that it is apparent from the impugned judgments that an amount of Rs.5,40,000/- was allotted for the purposes of construction of the school building in which the petitioner was the head teacher-cum-secretary. An agreement was entered into between the government and the P.W. 2 who was the chairman of Gram Shiksha Samiti. The petitioner was never a signatory to the agreement. 5. The learned counsel for the petitioner further submits that from perusal of the judgment, it is also apparent that the amount was deposited in the bank account and the withdrawal could be made under joint signature of the petitioner and P.W. 2, but the petitioner has been made the sole accused in the case and has been made a scapegoat. The learned counsel for the petitioner further submits that from perusal of the judgment, it is also apparent that the amount was deposited in the bank account and the withdrawal could be made under joint signature of the petitioner and P.W. 2, but the petitioner has been made the sole accused in the case and has been made a scapegoat. The learned counsel submits that since the petitioner was not the signatory to the agreement, therefore, the petitioner has been wrongly made accused and convicted. He further submits that P.W. 2 ought to have been the accused, but was made a witness in this case and no steps were taken by the State against P.W. 2. The learned counsel submits that in such circumstances, it is not clear from the records as to whether the petitioner or P.W. 2 had embezzled the amount allocated for the construction of school building. It is submitted that in the aforesaid circumstances the petitioner is entitled to benefit of doubt. 6. The learned counsel for the petitioner has also submitted that without prejudice to the aforesaid submission, the petitioner has already remained in custody for a period from 12.12.2011 onwards and was released on bail by an order of this Court vide order dated 10.01.2014 and a few days must have been taken for furnishing the bail bond. He submits that the petitioner has remained in custody for more than two years and one month and has faced the criminal case for about 10 years. Accordingly, he prays that some lenient view may be taken and the sentence of the petitioner be modified. 7. During the course of argument, learned counsel for the petitioner has submitted that the petitioner has already been asked to deposit fine amount of Rs. 10,000/- on each count and while modifying the sentence, if any, the fine amount may not be enhanced. Arguments of the opposite party - State 8. 7. During the course of argument, learned counsel for the petitioner has submitted that the petitioner has already been asked to deposit fine amount of Rs. 10,000/- on each count and while modifying the sentence, if any, the fine amount may not be enhanced. Arguments of the opposite party - State 8. The learned counsel appearing on behalf of the opposite party – State , on the other hand, has opposed the prayer and has submitted that though the agreement was entered into between the government and the P.W. 2, who was the chairman of Gram Shiksha Samiti, but the school building was to be constructed where the petitioner was the head teacher-cum-secretary and accordingly, the amount was transferred in the bank account which was to be jointly operated by the petitioner as well as the chairman of Gram Shiksha Samiti. He has also submitted that it was the petitioner who was responsible for the execution of work which is apparent from the evidence of P.W. 2 who has stated one instance that an amount of Rs. 70,000/- was given to the petitioner to purchase bricks, but instead of purchasing bricks, the amount was embezzled. 9. The learned counsel for the opposite party- State has further submitted that although there could be some doubt regarding the complicity of P.W. 2 as well, but the fact remains that P.W. 2 was never made an accused in the present case and that by itself cannot be a ground to create any doubt in the prosecution case so far as the present petitioner is concerned. The learned counsel has submitted that it has come in the evidence of P.W. 6 who was the officer of the bank that the presence of chairman of Gram Shiksha Samiti as well as the secretary of the school was essential for the purposes of withdrawal of the amount. The learned counsel has also referred to the various exhibits regarding withdrawal of the amount indicating that those exhibits indicate signature of the petitioner as well as P.W. 2. The learned counsel submits that considering the limited scope of revisional jurisdiction, there is no scope for interference in concurrent finding of fact recorded by the learned courts below and no perversity or illegality as such has been pointed out by the learned counsel appearing on behalf of the petitioner. 10. The learned counsel submits that considering the limited scope of revisional jurisdiction, there is no scope for interference in concurrent finding of fact recorded by the learned courts below and no perversity or illegality as such has been pointed out by the learned counsel appearing on behalf of the petitioner. 10. So far as the sentence is concerned, the learned counsel for the opposite party- State has submitted that there is no doubt that the petitioner has remained in custody for a long time i.e. for more than two years and one month out of the total period of three years. He submits that in case this Court is inclined to modify the sentence considering the period for which the petitioner has faced the criminal case, then the fine amount may be enhanced as the State has been put to loss to huge amount and the fact remains that the school building was not constructed and the entire amount allocated for the same was siphoned off. Findings of the Court 11. The brief fact of the case is that, according to the informant who was Prakhand Shiksha Prasar Padadhikari, an amount of Rs. 5,40,000/- was entrusted to the present petitioner who was head teacher-cum-secretary of the said school through the account of Gram Shiksha Samiti for construction of the building of Utkramit Prathmik Vidhalaya Banjhji, Taljhari. The informant alleged that out of total amount of Rs. 5,40,000/-, an amount of Rs. 5,33,504/- was withdrawn by the petitioner, but no work of building construction was done. 12. On the basis of written report of Shiksha Padadhikari, Taljhari, Rajmahal (Taljhari) P.S. Case No. 7/11 dated 09.02.2011 was registered against the petitioner under Sections 406 and 409 of Indian Penal Code. After investigation, charge –sheet was submitted against the petitioner under the aforesaid sections. Thereafter, cognizance of offence was taken and after commitment, on 29.01.2012, charge was framed against the petitioner under Sections 406 and 409 of Indian Penal Code. After completion of the prosecution evidence, the petitioner was examined under Section 313 Cr.P.C. and the petitioner denied the allegations and stated that the chairman of Gram Shiksha Samiti used to take out the money. However, the petitioner did not lead any defence evidence. 13. After considering the evidences on record the learned trial court convicted the petitioner under Sections 406 and 409 of Indian Penal Code. 14. However, the petitioner did not lead any defence evidence. 13. After considering the evidences on record the learned trial court convicted the petitioner under Sections 406 and 409 of Indian Penal Code. 14. The learned lower appellate court, after considering the materials on record, gave its findings in para 18 of its judgment which reads as under: “18. On the basis of evidences on record it is, therefore, proved that the appellant who is the public servant was entrusted with the money and that he has misappropriated the amount for his own use. I do not find any contradiction in the depositions of the prosecution witnesses. Therefore, the appellant/accused has rightly been convicted u/s 406 and 409 of the I.P.C. The appellant has been sentenced u/s 406 I.P.C. to undergo R.I for three years and to pay a fine of Rs. 10,000/- and in case of non-payment of fine amount to undergo S.I for two months. He has further been sentenced u/s 409 I.P.C to undergo R.I for three years and to pay a fine of Rs. 10,000/- and in case of non-payment further to undergo S.I. for two months. Both the sentences are to run concurrently. Looking the nature of the offence whereby the appellant being a teacher has misappropriated the amount that was entrusted to him for construction of school building. I find that he is neither entitled for any reduction in sentences nor benefit under Probation of Offenders Act. I find that there is no merit in the criminal appeal it is, therefore, dismissed.” 15. This Court finds that from the side of the prosecution, altogether nine witnesses were examined. P.W. 1 was Gram Pradhan of the village. P.W. 2 was the chairman of Gram Shiksha Samiti who is the signatory to the agreement for construction of building of the school in which the petitioner was the secretary. P.W. 6 and 7 are the officers of the bank namely, Vananchal Gramin Bank where the amount of Rs.5,50,000/- was deposited in the joint account of the petitioner and P.W. 2, being the Secretary of the school and chairman of Gram Shiksha Samiti respectively. P.W. 8 is the investigating officer of the case. P.W. 9 is the Block Education Officer who was posted as Shiksha Prasar Padadhikari at Taljhari during the period from 24.03.2009 to 26.03.2011 and during her period, the amount of Rs. P.W. 8 is the investigating officer of the case. P.W. 9 is the Block Education Officer who was posted as Shiksha Prasar Padadhikari at Taljhari during the period from 24.03.2009 to 26.03.2011 and during her period, the amount of Rs. 5,40,000/- was given in the account of Gram Shiksha Samiti for construction of school building. Apart from evidence of the aforesaid witnesses, following documents were also exhibited: Exhibit 1 to 1/26 - Withdrawal Form Exhibit 2 - Endorsement on written application Exhibit 2/1 – Signature of informant on written application Exhibit 2/2 – Written application Exhibit 3 – Formal F.I.R. Xerox copy of Letter no. 1409 dated 03.09.2010, letter no. 1079 dated 15.07.2010 of District Education Superintendent Officer and letter no. 266 dated 11.08.2010 of Prakhand Prasar Padadhikari, Taljhari were marked as Exhibits X, X/1 and X/2 for identification. Similarly, xerox copy of pass book of Gram Shiksha Samiti having 08 sheets were marked as Exhibit Y to Y/7 for identification. 16. P.W. 1 though is Gram Pradhan of the village, but his evidence is hearsay, in as much as, he heard that more than five lakhs was given to the head teacher-cum-secretary for construction of the school building and he withdrew all the amount, but did not construct the school building. P.W. 2 is the chairman of Gram Shiksha Samiti who is a signatory to the agreement for construction of building and also the joint account operator of the account in which the money was deposited in the bank. He had deposed that he withdrew Rs. 70,000/- from the account and gave it to the petitioner to purchase bricks, but he did not purchase any bricks for construction of the school building. He also admitted that the amount of Rs.70,000/- was withdrawn under the joint signature of the petitioner and P.W. 2. P.W. 3 has deposed that the school was running in the Verandha of his house, but the petitioner did not construct the school building. P.W. 4 has deposed that the school was running in the Verandha of P.W. 3 and this witness had given application for construction of school for which tender was passed, but the school was not built. P.W. 5 has also supported the fact that the school building was not constructed. Thus, from the evidence of P.W. 1, 2, 3, 4 and 5, it is clear that an amount of Rs. P.W. 5 has also supported the fact that the school building was not constructed. Thus, from the evidence of P.W. 1, 2, 3, 4 and 5, it is clear that an amount of Rs. 5,40,000/- was given for the construction of building of the school and the amount was kept in the joint account of the petitioner and P.W. 2 being the secretary of the school and chairman of Gram Shiksha Samiti respectively. An amount of Rs. 70,000/- was drawn from the bank account as per the evidence of P.W. 2 which was handed over to the petitioner for purchase of bricks, but he did not purchase the bricks and that the bank account was operated under the signature of both the persons. Further, the agreement for construction of building was done with P.W. 2. P.W. 6 is the officer of the bank who was posted in the bank at relevant point of time. He has given the details of the bank account and has deposed that it was a joint account and all money was withdrawn by P.W. 2 and the petitioner. He identified the signatures of the petitioner which were marked as Exhibit-1 to 1/25 on the withdrawal forms. He has deposed that for withdrawal of amount, the signature of petitioner as well as P.W. 2 was necessary. P.W. 7 is another branch manager of the bank who deposed that on 20.02.2008 an amount of Rs. 20,000/- was withdrawn from the account under the signature of the petitioner and P.W. 2 and he identified the signature of the petitioner which was exhibited as Exhibit- 1/26. P.W. 8 is the investigating officer of the case, who has exhibited the written report and the formal First Information Report. P.W. 8 had inspected place of occurrence and recorded the statement of witnesses. This witness has deposed that he did not find any school building on the place of occurrence. P.W. 9 is the Block Education Officer, who has also fully supported the prosecution case and has stated that till 2010, an amount of Rs. 5,33,500/- was withdrawn under the joint signature of the petitioner and P.W. 2, but construction of the school was not done and she only found some bricks. She had given the written report to the police against the petitioner on 22.09.2010. 17. 5,33,500/- was withdrawn under the joint signature of the petitioner and P.W. 2, but construction of the school was not done and she only found some bricks. She had given the written report to the police against the petitioner on 22.09.2010. 17. Upon perusal of the aforesaid evidences which have been recorded in the impugned judgments, this Court finds that admittedly the agreement was entered into by the P.W. 2 being the chairman of Gram Shiksha Samiti for the purposes of construction of school building and admittedly the petitioner was the secretary of the school which was required to be constructed. It further transpires that the amount was withdrawn from the bank under joint signature of both i.e. the petitioner and P.W. 2. The perusal of the impugned judgment reveals that it was the petitioner who was there on the spot where the building was to be constructed as the petitioner was the head teacher-cum-secretary of the school and admittedly, there has been no construction of the school building much less any partial construction, which is apparent from the evidence of the investigating officer who had visited the place of occurrence. 18. The learned counsel for the petitioner has laid emphasis on the point that P.W. 2 was never made an accused in the case although P.W. 2 was the signatory of the agreement and was joint holder of the account in which the amount was disbursed for construction of the school building. The emphasis of the learned counsel for the petitioner is more on involvement and role of P.W. 2 and on the basis of the fact that P.W. 2 was not made an accused in the case, an argument has been advanced that this by itself creates a doubt in the prosecution case against the present petitioner. 19. This Court is of the considered view that the aforesaid argument of the learned counsel for the petitioner is devoid of any merits and merely because P.W. 2 was not made an accused in the case, the same does not absolve the petitioner of his criminal liability in the matter of embezzlement of the amount disbursed for construction of school building in which the petitioner was the head teacher-cum-secretary and admittedly, there was no construction on the spot. The petitioner being the secretary of the school was certainly on the spot where the building was to be constructed. The petitioner being the secretary of the school was certainly on the spot where the building was to be constructed. Otherwise also, merely because there are some materials against another person i.e. P.W. 2 in the instant case who was not made an accused, the same by itself cannot be a ground for acquittal of the petitioner. 20. This Court finds that the basic ingredients for commission of offence under Section 406/409 of Indian Penal Code are certainly present as against the present petitioner and by not making P.W. 2 a co-accused, no doubt in the prosecution case is created so far as the role of the petitioner is concerned. The learned courts below have given concurrent finding of facts while convicting the petitioner for offence under Section 406/409 of Indian Penal Code and in absence of any illegality or perversity, no interference in the impugned judgments of conviction is called for in revisional jurisdiction. This court is of the considered view that not making a person co-accused in the case (P.W-2 in this case), does not make the judgments of conviction illegal or perverse. 21. However, considering the fact that the petitioner has faced the rigors of criminal case for more than 10 years and has already remained in custody for about two years and one month, this Court finds that ends of justice would be served, if the sentence of the petitioner is modified to some extent. Accordingly, the sentence of the petitioner is hereby modified and confined to the period already undergone by the petitioner and the fine amount is enhanced by a total of Rs. 50,000/-over and above the fine amount already imposed by the learned court below. The additional fine amount of Rs.50,000/- is directed to be deposited by the petitioner in the district treasury (Zila Nazarat) and submit the proof of the deposit before the learned trial court below within a period of two months from the date of communication of this order to the learned trial court. If the additional fine amount of Rs.50,000/- is not deposited, the petitioner would serve the sentence already imposed by the learned courts below. In case of deposit of the aforesaid fine amount within the stipulated time, the petitioner as well as the bailors will be discharged of their liability under the bail bonds. If the additional fine amount of Rs.50,000/- is not deposited, the petitioner would serve the sentence already imposed by the learned courts below. In case of deposit of the aforesaid fine amount within the stipulated time, the petitioner as well as the bailors will be discharged of their liability under the bail bonds. In case of non-deposit of the amount, the bail bonds will be immediately cancelled by the learned court below so that the petitioner may serve the remaining sentence. It is made clear that the aforesaid fine amount of Rs.50,000/- is over and above the fine amount of Rs.20,000/- already imposed by the learned court below. 22. This petition is disposed of with aforesaid modification of sentence. 23. Pending interlocutory application, if any, is dismissed as not pressed. 24. Let a copy of this order be communicated to the learned court below through ‘FAX’.