IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Revision No. 164 of 2001 (Old No. 1982 of 2000) Jagdish Chandra Joshi Head Clerk, Government Inter College Guniyalekh, Patti Cheurigarh Tehsil –Dhari, District Nainital ………..…Revisionist. Versus The State of Uttar Pradesh (Now State of Uttarakhand) ……..…Opposite Party. Shri Vivek Shukla , Advocate present for the revisionist. Smt. Mamta Bisht, A.G.A. with Shri M.A. Khan, Brief Holder present for the State. Hon’ble Prafulla C. Pant, J. This revision is directed against the judgment and order dated 11.08.2000, passed by 1st Additional Sessions Judge, Nainital, in criminal appeal No. 7 of 2000, whereby said court has dismissed the appeal and affirmed the conviction and sentence recorded by the trial court (Additional Civil Judge, (Sr. Div.)/Additional Chief Judicial Magistrate, Nainital), against the revisionist 2 Jagdish Chandra Joshi in criminal case No. 198 of 1999 in respect of offence punishable under section 409 of I.P.C. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that revisionist Jagdish Chandra Joshi, a Head Clerk, Government Inter College, Guniyalekh, Patti Cheurigarh, Nainital, on 04.02.1992, received a draft of Rs. 73,114/- for making payment of salary to the staff of the college. However, on the next day it is said that out of the encashed amount of the draft Rs. 45,314/- were snatched from his bag, balance of Rs. 25,000/- was handed over by him to the Principal of the College on 05.03.1994. When as to the misappropriated amount of Rs. 48,114/-, the principal tried to contact the revisionist, he was not available in the premises. On this, the principal of the college made a report to the Higher Authorities and first information report (Exh.- 2) was registered with the Patwari, Patti Cheurigarh, against the revisionist Jagdish Chandra Joshi in respect of offence 3 punishable under section 409 of I.P.C. After investigation, the Investigating Officer submitted charge sheet against the accused (present revisionist). Meanwhile on 21/22.03.1994, Jagdish Chandra Joshi withdrew the amount from his provident fund and deposited the same in the proper head to make good the loss to the public exchequer. 4. The trial court after giving copies to the accused framed charge of offence punishable under section 409 of I.P.C. against the accused Jagdish Chandra Joshi on 11.09.1998, to which he pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.2 Rambal Singh, Incharge principal, P.W.2 Daya Krishna Joshi, P.W.3 Salim Akhtar, Lecturer, P.W.4 Chandra Ballabh and P.w. 5 Prem Singh Rautela, Patti Patwari, Investigating Officer. The evidence was put to the accused under section 313 of Cr.P.C. in reply to which he stated that he did not misappropriate the amount. No evidence was given. The trial court after hearing the parties found the accused Jagdish Chandra Joshi guilty of charge of offence punishable under section 409 of I.P.C., and after hearing on sentence, 4 sentenced him to rigorous imprisonment for a period of two years and also directed him to pay fine of Rs. 1,000/. The convict appears to have to preferred an appeal against the judgment and order dated 02.02.2000, passed by Additional Chief Judicial Magistrate, Nainital in criminal case No. 198 of 1999, which was transferred to the court of 1st Additional Judge, Nainital. Said court vide impugned judgment and order dated 11.08.2000, dismissed the appeal and maintained the conviction and sentence recorded by the trial court. Hence, this revision was filed before Allahabad High Court on 30.08.2000, from where it is received by transfer to this Court under section 35 of U.P. Reorganization ,2000( Central Act 29 of 2000) for its disposal. 5. Learned counsel for the revisionist argued that infact there is no misappropriation on the part of the revisionist. He further stated that the entrusted draft of Rs. 73,114, meant for disbursement of salary of the staff of the college, when encashed, an incident of snatching took place and the revisionist had made good the amount so snatched. However 5 on going through the evidence on record this Court finds no report of the incident of snatching (robbery) was made by the accused. The revisionist should have got lodged the first information report with the concerned Police Station/patwari. It appears that has not been done. 6. However, admittedly the revisionist made good the loss of Rs. 48,114/- within three weeks of the incident. As such, technically there is criminal misappropriation of the entrusted amount but for a temporary period. As such from the statement of the witnesses and the documentary evidence on record it is undoubtedly proved that accused/revisionist did commit criminal misappropriation of the entrusted amount but for a short period. 7. Therefore, as far as the conviction of the revisionist relating to offence punishable under section 409 of I.P.C. is concerned, there appears no illegality in recording the conviction. But in the facts and circumstances of the case, sentence passed against the revisionist, appears to be excessive. At the most it is a case of 6 temporary embezzlement and the revisionist had already made good the loss to the public exchequer even before filing of the charge sheet. It is pointed out to this Court accused/revisionist Jagdish Chandra Joshi has already been in jail for 52 days during the trial and the period of appeal/revision 8. Therefore, considering the facts and circumstances of the case this Court is of the view that modifying the sentence to the period already spent in jail by the revisionist and maintaining fine directed to be paid by the revisionist, would meet the ends of justice. Accordingly the revision is disposed of affirming the conviction recorded by the trial court, Additional Civil Judge(Sr. Div), Nainital, in criminal case No. 198 of 1999 under section 409 of I.P.C. which is also affirmed by the lower appellate court in criminal appeal No. 7 of 2000. To that extent the impugned orders are not interfered with. However, on the point of sentence, the sentence awarded to the accused/revisionist Jagdish Chandra Joshi is reduced to imprisonment of period already undergone but maintaining the direction to pay fine of 7 Rs. 1,000/-. The revision stands disposed of. Lower court record be sent back. (Prafulla C. Pant, J.) Dt:21.04.2010 parul 8