IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B.Cr.Revision Petition No.363/1999. Jagdish Prasad Sharma Vs. The State of Rajasthan. 27.3.2009. Hon'ble Mr.Justice Mahesh Chandra Sharma. Mr.R.P.Garg for the petitioner. Mr.Pradep Srimal P.P for the State. S.B.Cr.Revision Petition against the judgment and Order dated 19.5.1999 passed by District & Sessions Judge, Sawaimadhopur in Cr.Appeal No.88/98 filed by the accused petitioner whereby he has confirmed the judgment dated 12.8.1998 passed by Judicial Magistrate, Bonli in Cr.Case No.1302/1993 whereby he convicted the accused petitioner for the offence under Section 408 for 2 years R.I with of Rs.1000/-, in ..2.. default of payment of fine to undergo further 3 months R.I and for offence under Section 420 IPC he was sentenced for 1 year R.I with fine of Rs.500/-, in default of payment of fine, to undergo further 2 months R.I and for the offence under Section 467 IPC sentenced him for 3 years R.I with fine of Rs.3000/-, in default of payment of fine to undergo 6 months R.I, all the sentences will run concurrently. This revision petition has been filed by the petitioner against the judgment and order dated 19.5.1999 passed by District & Sessions Judge, Sawaimadhopur in Cr.Appeal No.88/98 filed by the accused petitioner whereby he has confirmed the judgment dated 12.8.1998 passed by Judicial Magistrate, Bonli in Cr.Case No.1302/1993 whereby he convicted the accused petitioner for the offence under Section 408 for 2 years R.I ..3.. with of Rs.1000/-, in default of payment of fine to undergo further 3 months R.I and for offence under Section 420 IPC he was sentenced for 1 year R.I with fine of Rs.500/-, in default of payment of fine, to undergo further 2 months R.I and for the offence under Section 467 IPC sentenced him for 3 years R.I with fine of Rs.3000/-, in default of payment of fine to undergo 6 months R.I, all the sentences will run concurrently. The brief facts of the case are that on 24.4.1986, one Govind Narain Sharma, Chief Manager, Kraya Vikraya Sahakari Samiti Ltd., has lodged a report at Police Station Malarna, Dungar against the accused petitioner. Upon the aforesaid report, the police after investigation filed a challan before the Court of Civil Judge (Jr.Dvn.) Ist Class Bonli. The learned Magistrate has ..4.. framed charges against the accused petitioner for the offence under Section 408, 420 & 467 IPC. The charges were read over rand explained to the accused petitioner who denied the charges and claimed trial. Statement of accused was also recorded under Section 313 Cr.P.C who denied charges and claimed for trial. The prosecution in support of its case examined 12 witnesses and exhibited some documents. The trial court after hearing both the parties vide its judgment dated 12.8.1998 convicted and sentenced the accused petitioner as indicated above, against which the accused petitioner preferred an appeal before the District & Sessions ..5.. Judge, Sawaimadhopur who vide his judgment and order dated 19.5.1999 rejected the appeal and confirmed the judgment and order of learned trial court. The petitioner feeling aggrieved by the aforesaid judgment and orders passed by both the courts below, preferred the present revision petition before this Court. Mr.R.P.Garg Advocate appearing on behalf the petitioner has contended that the trial court has not considered this fact that the important witness (Govind Narain Sharma) who lodged FIR was not produced by prosecution. Hence, in the absence of the evidence or statements of Govind Narain Sharma such FIR was not proved. Hew further contended that the petitioner was not given an opportunity to ..6.. cross the same, as such, prejudice has been caused to the petitioner and the petitioner deprived from his right of defence and cross-examination. According to him, this ground alone is sufficient to acquit the petitioner. He further contended that the petitioner was not cashier and P.W.1 Beni Prasad has not supported the prosecution case and accepted that Murari Lal Gupta has made entry in the accounts and also accepted that the original vouchers are not available on record and also accepted that amount has got deposited and does not prove that the petitioner has with-held the alleged amount. Learned counsel has drawn attention to the statements of P.W.2 Satya Narain who has also not supported the prosecution case. He has clarified in the statement that he was not the I nquiry Officer and ..7.. stated that Govind Narain was the Inquiry Officer who was not produced by the prosecution. Another two witnesses P.W.3 Dwarak Prasad Sharma and P.W.4 Murari Lal Gupta have not supported the prosecution case and given negative replies to the prosecution story, hence the prosecution has failed to prove this fact that the petitioner is responsible for making the entries. He has further drawn attention of this Court that the trial court as well as the appellate court have committed gross error in observing that the petitioner has with-held the amount of Rs.20,850/- but the same was deposited by the petitioner for the purpose to save himself. It is submitted that the Kraya Vikraya Sahakari Samaiti Ltd had taken decision that no legal proceedings will be initiated against the petitioner if the petitioner will deposit the amount and accordingly he ..8.. deposited the amount and the petitioner was taken in service, no loss has been caused to the Society. Mr.Gupta has produced relevant document in this regard along with another document dated 29.12.90. Both these documents be taken on record. In the aforesaid document dated 29.10.90, it has been clarified that Kraya Vikraya Sahakari Samiti Ltd has taken decision that no legal proceedings will be initiated against the petitioner of any kind if the petitioner will deposit the amount and with a view to save himself. In this respect, resolution was passed by Samiti and acted upon which, the petitioner was ten in service and no loss has been cause to the Society. Mr.Gupta, in the alternate, has requested to this Court that the petitioner has remained in judicial lockup for more than 11 days, the occurrence took place ..9.. 24.4.1986 i.e. Approximately 23 years ago, he is facing trial since last 23 years which tantamount to mental agony. He further urged to this court that petitioner is suffering from old decease and having children of marriageable age and he is a responsible member of family and it is first offence from his end, hence, a lenient view be taken and prays that benefit of Probation of Offenders Act should be given to the petitioner, if not, the petitioner should be released for the period already undergone by him in confinement. Lastly he urged to this Court that without going into the merit of the case, he is not challenging the conviction part of the judgment of court below. Mr.Pradeep Srimal learned P.P has opposed the arguments advanced by the learned counsel for the petitioner. ..10.. In the light of the aforesaid facts and circumstances of the case, I am inclined to take a lenient view in the matter and I do not think it proper to send back the petitioner to jail. Since the petitioner has already remained in judicial custody for 11 days, the alleged amount has also been deposited, ends of justice would be met in case the petitioner is released for the period already undergone by him. I maintain the fine awarded by the trial Court which may be deposited as per direction of the trial court. This revision petition is partly allowed and the order passed by the court below is modified as indicated above. (Mahesh Chandra Sharma)J. K.