THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.No.359 OF 2009 ORDER The accused in C.C.No.217 of 2006 on the file of the Court of I Additional Judicial First Class Magistrate, Tenali, who was convicted of an offence under Sections 409 and 477-A IPC and sentenced to undergo Rigorous Imprisonment for a period of six(6) months and to pay a fine of Rs.1,000/- in default to undergo S.I for one month for the offence under Section 409 IPC; and further sentenced to undergo R.I for three(3) months for the offence under Section 477-A I.P.C, whose conviction and sentence in Criminal Appeal No.183 of 2008 was upheld, is the revision petitioner. The case of the prosecution is that the accused is working as a mechanic in A.P. State Civil Supplies Corporation Limited, Pinapadu and he was entrusted with the work of collecting the cash towards sale proceeds of LPG Cylinders from the distribution boys and remit the same with the bank. It was noticed that the accused has misappropriated a sum of Rs.1,79,047/- and on 02-02-2006 as against the entrusted amount of Rs.60,855/- only Rs.825/- was remitted and so also on 04-02-2006 as against the entrusted amount of Rs.72,219/- only Rs.219/- was deposited and on 07-02-2006 as against Rs.83,306/-, a sum of Rs.41,047/- was not remitted. During the conciliation statement, this fact was noticed by PW.2 and a compliant was given to the police. The accused was arrested and he admitted use of money for his personal purpose. After trial, the Court has accepted the guilt of the accused, which was confirmed in the appeal. Now the point that arises for consideration is:- Whether the accused has misappropriated the money entrusted to him and fabricated the challans? POINT:- The evidence of PWs.1 to 3 clearly goes to show as to the particulars of the work entrusted to the revision petitioner and also the failure to deposit the said amount. PWs.4 to 6 are the employees of the bank and they also spoke about the short remission. The expert has opined the disputed counterfoils said to have been fabricated by the accused of his writing only. The contention of the accused before both the courts below was due to his ill-health he entrusted the remittance of the amount to the third person, but there was no intentional short remittance. The evidence on record clearly establishes the factum of misappropriation and also the fabrication of the counterfoils as if the amount was remitted. There is no evidence on the side of the accused to show the person to whom the amount was entrusted due to his illness. His reliance on counterfoils said to have been given by third person cannot be taken into consideration. Therefore, it is a clear case where the accused has misappropriated the said amount and the counterfoils are also fabricated and the courts have rightly accepted the evidence and convicted. Sofar as the sentence is concerned, the learned counsel for the revision petitioner pleaded that the accused may be dealt under Section 360 Cr.P.C. But, however, taking into consideration the nature of the offence and the conduct of the accused, I do not find that the application of the provisions of either under Section 360 Cr.P.C. or under the provisions of Probation of Offenders Act,1958 is called for to release the revision petitioner/accused on probation. Hence, the revision case is liable to be dismissed. Accordingly the Criminal Revision Case is dismissed. The lower court is directed to issue N.B.W for apprehension of the revision petitioner/accused. _______________________ N.R.L. NĀGESWARA RĀO,J 20-12-2011 TSNR