JUDGMENT : Heard Mr. Rajesh Kumar, learned counsel appearing on behalf of the petitioner. 2. Heard Mr. Vishwanath Ray, learned A.P.P. appearing on behalf of the opposite party- State. 3. This criminal revision petition has been filed challenging the order dated 10.02.2012 passed in Criminal Appeal No. 22 of 2012 by learned Additional Judicial Commissioner-XVI, Ranchi whereby the order of conviction of the petitioner has been sustained by the learned appellate court. 4. The petitioner was convicted for offence under Sections 409, 420 read with Section 120B of Indian Penal Code and was sentenced to undergo- Simple Imprisonment for two years and also to pay fine of Rs. 10,000/- for commission of offence under Section 409 of Indian Penal Code with default clause of further imprisonment for three months. Simple Imprisonment for two years and to pay compensation of Rs.50,000/- to the postal department for commission of offence under Section 420 of Indian Penal Code. Simple Imprisonment for one year for commission of offence under Section 120B of Indian Penal Code. All the aforesaid punishments and sentences were directed to run concurrently. 5. The learned appellate court, while sustaining the conviction of the petitioner under Section 409/420 read with Section 120B of Indian Penal Code modified the sentence to a period of one year for the offence under Sections 409, 420 read with Section 120B of Indian Penal Code and ordered payment of compensation to the tune of Rs. 40,000/- only to be paid to the postal department. The appellate court also directed that if the postal department has already paid the amount to the ultimate victim Mahendra Kumar and if the payment has not been made to Mahendra Kumar by the postal department, then the compensation amount may be paid to the ultimate victim, Mahendra Kumar. Arguments on behalf of the petitioner 6. The learned counsel for the petitioner, at the outset, has submitted that the petitioner has already deposited the compensation amount before the learned court below amounting to Rs. 40,000/-. However, he submits that this aspect of the matter has been submitted by him on instruction and it is for the learned court below to verify the said deposit. 7. The learned counsel for the petitioner, at the outset, has submitted that the petitioner has already deposited the compensation amount before the learned court below amounting to Rs. 40,000/-. However, he submits that this aspect of the matter has been submitted by him on instruction and it is for the learned court below to verify the said deposit. 7. The learned counsel for the petitioner has also submitted that the only allegation against the petitioner is that the petitioner had opened the account of one Mahendra Kumar without taking any introducer for his account and ultimately, the cheque of the income tax department amounting to Rs. 24,950/- in the name of Mahendra Kumar was deposited, encashed through bank transaction and the money was withdrawn. Subsequently it was found that the actual person namely Mahendra Kumar had not opened the account in the post-office and had accordingly not withdrawn the amount. The learned counsel submits that at the time of First Information Report itself, the petitioner was suspended and a departmental proceeding was initiated against the petitioner and ultimately vide order dated 21.03.2012, the Hon’ble President had ordered to drop the proceeding against the petitioner. It is submitted that the departmental proceeding based on same set of allegations having been dropped, the sentence of the petitioner be modified. 8. It is submitted that the age of the petitioner at the time of trial court judgment dated 19.12.2011 has been recorded as 69 years, but the petitioner had retired by attaining the age of 62 years from the postal department on 31.07.2004 and accordingly, his present age is about 80 years. The learned counsel submits that the petitioner does not have any criminal antecedent and he has faced the rigorous of the criminal case right from the date of the First Information Report i.e. from 18.11.1995. The learned counsel further submits that the petitioner was arrested on 31.07.1998 and was released on bail on 16.04.1999 by the learned court below. Thereafter, the petitioner had surrendered during the pendency of the present case on 09.05.2012 and was directed to be enlarged on bail on 17.05.2012 and a few days must have been taken by the petitioner to furnish the bail bond. Thereafter, the petitioner had surrendered during the pendency of the present case on 09.05.2012 and was directed to be enlarged on bail on 17.05.2012 and a few days must have been taken by the petitioner to furnish the bail bond. The learned counsel submits that the petitioner has already undergone custody for a period from 31.07.1998 to 16.04.1999 and then, from 09.05.2012 to 17.05.2012 i.e. about 8 months 23 days out of the maximum sentence of one year as modified by the learned appellate court. The learned counsel submits that considering the present age of the petitioner and the aforesaid facts and circumstances, the sentence of the petitioner be confined to the period already undergone in judicial custody. He also submits that this court may impose some fine amount and modify the sentence. Arguments on behalf of the opposite party- State 9. The learned counsel appearing on behalf of the opposite party- State, on the other hand, submits that both the learned courts below have ultimately convicted the petitioner for offence under Section 409/420 read with Section 120B of Indian Penal Code by well-reasoned judgments. There is no perversity or material irregularity in the impugned judgments and therefore, no interference is called for so far as conviction of the petitioner is concerned. The learned counsel also submits that the learned appellate court also recorded that the petitioner had committed offence under Section 467 of Indian Penal Code, but since the learned court below did not convict the petitioner under Section 467 of Indian Penal Code, therefore, the learned appellate court also did not convict him under the said section as per law. He submits that there are concurrent findings in connection with conviction of the petitioner under Sections 409, 420 read with Section 120B of Indian Penal Code. The learned counsel also submits that so far as the sentence is concerned, it is for the court to consider the facts and circumstances of this case. However, he does not dispute the fact that the petitioner does not have any criminal antecedent. Findings of this Court 10. Prosecution case in brief as stated by the informant, who was the then S.D.I.(P) North Sub. Division of the Post Offices is that, on receipt of the Letter dated 10.10.1995 of the Deputy Commissioner of Income Tax addressed to the Senior Superintendent of Post Offices, Ranchi Division, regarding wrong delivery of Regd. Findings of this Court 10. Prosecution case in brief as stated by the informant, who was the then S.D.I.(P) North Sub. Division of the Post Offices is that, on receipt of the Letter dated 10.10.1995 of the Deputy Commissioner of Income Tax addressed to the Senior Superintendent of Post Offices, Ranchi Division, regarding wrong delivery of Regd. Letter No. 3346 dated 08.02.1995 and also for fraudulent encashment of an Income Tax Refund order of Rs. 24950/- issued in favour of Sri Mahendra Kumar, Prop. M/S Krishna Traders, Hazaribagh Road, Ranchi, necessary departmental enquiry was made over to the present informant and one Vimal Kishore, Inspector of Post Offices (Complaints), Ranchi. Accordingly, said informant and Vimal Kishore enquired into the matter and came to know that Letter No. 3346 dated 08.02.1995 was made over to one Shibu Munda, Postman No. 32 of the G.P.O for delivery and on 10.02.1995 letter was delivered to the addressee namely Mahendra Kumar. Thereafter, on 04.04.1995 said so called Mahendra Kumar opened a Saving Bank Passbook A/c No. 585783 at Chutia Post Office and deposited cheque bearing no. 636056 dated 01.02.1995 for Rs. 24950/- for encashment. Said passbook account was opened by the present accused who was the then Sub-Postmaster of the Chutia Post Office without obtaining any introducer as required under the rule. The petitioner forwarded the same to the G.P.O. along with the cheque which was then sent to the State Bank of India, Ranchi for clearance. On 07.04.1995 cheque in question was cleared by the State Bank of India, Ranchi and credited in the account and was withdrawn. Sri Mahendra Kumar, the actual addressee of the letter and cheque, clearly stated that he had neither received the registered letter in question through any source, nor opened any account at Chutia Post Office and he did not receive any payment. Accordingly, the First Information Report was filed. 11. Upon receipt of First Information Report, the police investigated the matter and on completion of investigation, charge-sheet was submitted. On 06.07.1999 the charges were framed under Sections 409, 420, 467, 468 and 471/120B of Indian Penal Code which was read over and explained to the petitioner, who pleaded not guilty and claimed to be tried. After the prosecution evidence, the petitioner was examined under Section 313 of Cr.P.C. wherein he denied the allegation and the accused also adduced oral evidence in his defence. After the prosecution evidence, the petitioner was examined under Section 313 of Cr.P.C. wherein he denied the allegation and the accused also adduced oral evidence in his defence. The defence case in brief was that at the relevant point of time, he was post-master of the Chutia post-office. On 04.04.1995 saving bank passbook account was opened by him. Even amount of the cheque in question was also credited by him in the said account at Chutia post office. The cheque amount was also withdrawn with his signature. His specific case was since cheque facility was not taken in the said account, hence there was no need of introducer at the time of opening of the account. It was also his defence that at the relevant time, it was the rule of the postal department that introducer is needed only for saving account with cheque facility. In support of his claim, the petitioner had also placed reliance on Exhibit-4 of the prosecution. 12. The learned trial court, after appreciating the materials on record, both oral and documentary from the side of the prosecution as well as defence held at para 10 and 11 of the trial court judgment as under: “10…..Now in this case there is no dispute that being a Postmaster of a Post Office present accused was a public servant and the accused was entrusted by the postal authority to dealt with and to control over the banking of Chutiya Post Office and thereby the accused was entrusted by the Postal Department to deals with the banking of the Postal Department of the Chutia Post Office. Now the last ingredient is whether the accused have committed criminal breach of trust in respect of banking entrusted to him or not? In this context it is admitted fact that the account in question was opened in the name of a fake person and thereafter cheque was deposited and lastly cheque amount of Rs. 24,950/- was withdrawn. It is also admitted fact that said account was opened by the accused by violating the postal rules related with the postal bankings and thereby misappropriated Rs. 24,950/- of the postal department. Hence I find and hold that the accused being a public servant committed criminal breach of trust. 11. 24,950/- was withdrawn. It is also admitted fact that said account was opened by the accused by violating the postal rules related with the postal bankings and thereby misappropriated Rs. 24,950/- of the postal department. Hence I find and hold that the accused being a public servant committed criminal breach of trust. 11. Now so far as offence u/s 420 of I.P.C is concern, in this context in case of cheating the dishonest intention starts with the very inception of the transaction. Cheating has two parts. While in first part, the person must dishonestly or fraudulently induce the victim to deliver any property. In the second part the person should intentionally induce the victim to do or omit to do a thing. A guilty intention is essential ingredient of the offence of cheating. Now in this case there is no dispute that from very beginning the intention of the accused was to cheat the Postal department and for which account in question was opened after violating the postal rules. At the same time there is also no dispute that the accused dishonestly and fraudulently induced the postal department to make payment of the cheque amount by sending the cheque in question to the G.P.O. for clearance. It is also evident from the case record that the accused intentionally induced the Postal Department to credit the cheque amount in the account opened in the name of a fake person and thereafter he personally signed the withdrawal slip and money was withdrawn. Accordingly, I find and hold that the accused cheated the Postal Department by inducing the Postal Department for making payment to a fake person.” 13. So far as the offence under Sections 467, 468 and 471 of Indian Penal Code is concerned, the learned trial court held that the forged account was opened either by the petitioner or person of his aid with an intent to cheat the postal department and the said account was used as genuine account of Mahendra Kumar - P.W. 3 for encashment of cheque in question and also for withdrawal of the cheque amount issued in the name of P.W. 3. The learned trial court, in para 12 of its judgment, held that the prosecution successfully proved the charge under Sections 467, 468 and 471 of Indian Penal Code against the petitioner, but in the ultimate paragraph at para 14 of the trial court judgment, the trial court recorded that the prosecution proved the charge under Sections 409, 420 and 120B of Indian Penal Code against the petitioner, but hopelessly failed to prove the charge under Sections 467, 468 and 471 of Indian Penal Code. The learned trial court ultimately held the petitioner guilty for commission of offence under Sections 409, 420 and 120B of Indian Penal Code only. The learned trial court, while convicting the petitioner for offence under Section 120B of Indian Penal Code, recorded its finding at para 13 which is as follows: “13. Lastly so far as offence u/s 120B is concern, in this context that the section applies to those who are the member of the conspiracy during the continuance. To prove this offence the prosecution should prove that the accused agreed to do or caused to be done an act, that such act was illegal or was to be done by illegal means and that some overt act was done by one of the accused in pursuance of the agreement. The gist of the offence is the agreement itself and where the object of the agreement is to do unlawful act, and not to do a lawful act by unlawful means, it is sufficient to specify the unlawful object without specifying the means adopted by all or any of the conspirator to gain that object. Mere evidence of association or mere meeting would by itself not be sufficient to infer the existence of a criminal conspiracy. Now in this case there is no dispute that present accused was agreed to open the Savings Pass Book Account in the name of Mahendra Kumar, after violating the rules of the postal department. It is also admitted fact the accused was well aware that violation of rules of the postal department is an illegal act. There is also no dispute that the accused personally open the account, send the cheque to the G.P.O., credited the cheque amount in the account in question and said amount was withdrawn with the signature of the accused. It is also admitted fact the accused was well aware that violation of rules of the postal department is an illegal act. There is also no dispute that the accused personally open the account, send the cheque to the G.P.O., credited the cheque amount in the account in question and said amount was withdrawn with the signature of the accused. Hence I find and hold that the prosecution of this case successfully proved the charge u/s 120B I.P.C. against the accused.” 14. The appellate court also scrutinized the materials on record and ultimately upheld the conviction of the petitioner for offence under Sections 409, 420 read with Section 120B of Indian Penal Code. The learned appellate court further recorded that the petitioner would have been guilty of offence under Section 467 of Indian Penal Code also, but since the trial court did not convict the petitioner under Section 467 of Indian Penal Code, the appellate court did not convict the petitioner under Section 467 of Indian Penal code. 15. The appellate court reduced the period of sentence to one year for offence under Sections 409, 420 read with Section 120B of Indian Penal Code and ordered for payment of compensation to the tune of Rs. 40,000/- only to be paid to the postal department as mentioned above. 16. So far as dropping of departmental proceedings against the petitioner is concerned, a supplementary affidavit has been filed by the petitioner annexing an order dated 21.03.2012 passed in the name of the Hon’ble President of India. It appears that the petitioner was subjected to departmental proceedings and before it could be taken to a logical end pursuant to two enquiry reports indicating that certain allegations were not proved, the proceedings against the petitioner was dropped and it was observed as under: “And whereas, the Rule 14 proceedings which could have been concluded before retirement of the CO on 31.07.2004, when I.O. had given report that both the articles were NOT PROVED on 26.12.2003, the case was remitted for de-nova Inquiry leading to unnecessary delay in a case which was not grave enough to attract the provisions of Rule 9 of CCS (Pension) Rules 1972 for major penalty proceedings. In view of the above the President has ordered to drop the proceedings against Shri. Jagdish Prasad Sinha.” This Court finds that the said order does not amount to exonerating the petitioner in the departmental proceeding and accordingly, has no bearing in the matter. Otherwise also the allegations against the petitioner were proved in the criminal case for offence under Sections 409, 420 read with Section 120B of Indian Penal Code. 17. This Court is of the considered view that the learned courts below have scrutinized the materials on record and have given concurrent findings in connection with the offences committed by the petitioner under Sections 409, 420 read with Section 120B of Indian Penal Code. 18. During the course of argument, no such material was placed before this Court to indicate any illegality, perversity or material irregularity in the impugned judgments calling for any interference in the limited scope of revisional jurisdiction of this Court. Accordingly, this Court upholds the conviction of the petitioner under Sections 409, 420 read with Section 120B of Indian Penal Code. 19. So far as the sentence is concerned, it is not in dispute that the petitioner is about 80 years of age and the First Information Report was instituted as back as on 18.11.1995 and since then, the petitioner has faced the rigorous of criminal case. This Court finds that more than 25 years have already elapsed and the petitioner has already remained in custody for the period from 31.07.1998 to 16.04.1999 and thereafter, from 09.05.2012 to 17.05.2012. 20. Considering the totality of the facts and circumstances of this case, this Court is of the considered view that no useful purpose will be served by sending the petitioner to jail at this stage of his life and accordingly, the sentence of the petitioner is required to be modified to meet the ends of justice. Accordingly, the sentence of the petitioner is hereby modified to the period already undergone in custody with additional fine of Rs. 25,000/-. 21. The entire fine amount (i.e Rs.10,000/- imposed by learned court below plus Rs.25,000/- as mentioned above) to be deposited by the petitioner within a period of three months from the date of communication of this order to the learned trial court. 25,000/-. 21. The entire fine amount (i.e Rs.10,000/- imposed by learned court below plus Rs.25,000/- as mentioned above) to be deposited by the petitioner within a period of three months from the date of communication of this order to the learned trial court. In case of non-deposit of the fine amount within the stipulated time-frame, the bail bond furnished by the petitioner will stand cancelled and he would undergo the punishment already imposed by the learned lower appellate court. In case the petitioner deposits the fine amount within the stipulated time frame, the petitioner will be discharged from his liability under the bail bond. So far as the amount of victim compensation of Rs.40,000/- is concerned, the petitioner is directed to deposit the same within the aforesaid period of three months before the learned court below, if not already deposited. It has been submitted by the learned counsel for the petitioner that the compensation amount has already been deposited, subject to verification by the learned court below. 22. This criminal revision petition is disposed of with aforesaid modification of sentence. 23. Pending interlocutory application, if any, is closed. 24. Let the lower court records be sent back to the court concerned. 25. Let a copy of this order be communicated to the learned court below through ‘FAX/e-mail’. Revision disposed of accordingly.