THE HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRIMINAL REVISION CASE No.264 of 2011 JUDGMENT: The petitioner herein was tried by the III Additional Judicial Magistrate of First Class, Rajahmundry, in C.C.No.297 of 2002 for the offence punishable under Section 409 IPC. During the course of trial, the prosecution examined P.Ws.1 to 9 and marked Exs.P-1 to P-5. On behalf of defence, no oral or documentary was adduced. The learned Magistrate, having analysed the entire evidence, came to the conclusion that the prosecution established the guilt of the accused beyond all reasonable doubt and accordingly, by his judgment, dated 08.03.2010, convicted and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/-, in default to undergo simple imprisonment for two months for the offence punishable under Section 409 IPC. The said judgment was questioned by filing Criminal Appeal No.83 of 2010 and the learned V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, while concurring with the said findings of the trial Court, dismissed the appeal, vide judgment, dated 04.02.2011. Hence, the petitioner approached this Court and filed this Revision. The case of the prosecution, in brief, is as follows: - The accused was entrusted with the work of collection of telephone bills from the villagers of different villages by visiting the villages on mobile cash van with effect from 20.08.1999. While so, the accused in the capacity of mobile cash counter clerk was supplied with receipt books and he is expected to grant receipts while collecting payment of the telephone bills from the subscribers. At the end of the day, the accused is supposed to prepare daily list, incorporating all receipts granted by him, along with counter-foils of telephone bills and submit the same to the J.A.O., cash for checking and hand over the cash, cheques, DDs to the cashier. During the course of verification of the records, it was found that the accused misappropriated an amount of Rs.1,52,436/- being the telephone bills amount collected by him from the subscribers in the villages. From out of the above amount i.e., Rs.1,52,436/- the official has credited only Rs.67,399/- and the balance of Rs.85,037/- was not paid by him. In this connection, basing on the report, a case was registered and after completion of the investigation, the charge sheet is filed. It is mainly contended by the learned counsel for the petitioner-accused that the entire amount which has been misappropriated, was paid by the petitioner during the pendency of the trial. Despite the said payment, the Courts below have sentenced the petitioner to undergo rigorous imprisonment for one year. It is his further submisson that the petitioner is aged about 67 years and as such, the Courts below should not have imposed the sentence of rigorous imprisonment of one year on him. Heard both sides. The petitioner at the relevant point of time was working as Senior Telecom Supervisor, Office of (A.O.) Cash, Telecom Office, Rajahmundry. From the above, it is clear that he is in a responsible position dealing with cash and he is expected to be honest. When the person to whom cash has been entrusted misappropriates the same, in my considered view, no lenient view can be taken. May be, it is a fact that the entire amount of misappropriation i.e., Rs.1,52,436/- has been paid by the accused, but that cannot be a ground for the Courts below to come to a conclusion that the petitioner-accused can be let off. In those circumstances, the Courts below have sentenced him to suffer rigorous imprisonment for one year for the offence punishable under Section 409 IPC. However, taking into consideration the facts that the alleged offence is of the year 1999 and the petitioner was in jail as an under-trial prisoner and as of now also, he is languishing in jail from 04.02.2011 i.e., the date on which the appeal was dismissed, this Court is of the view that a lenient view can be taken. Accordingly, the Criminal Revision Case is liable to be dismissed. However, the sentence of rigorous imprisonment for a period of one year for the offence punishable under Section 409 IPC imposed on the petitioner-accused is reduced to that of the period already undergone by him. The fine amount of Rs.3,000/- imposed on the accused by both the Courts below is enhanced to Rs.5,000/- (Rupees Five thousand only). The fine enhanced by this Court shall be paid by the petitioner-accused within a period of two weeks from the date of receipt of a copy of this order, failing which, the petitioner shall suffer the rigorous imprisonment imposed on him by both the Courts below. With the above modifications, the Criminal Revision Case is dismissed. ___________________________________ JUSTICE GOPALA KRISHNA TAMADA 08th February 2011 DR