Prafulla C. Pant, J.
1. This revision is directed against judgment and order dated 24.01.2002, passed by Additional Sessions Judge/Fast Track Court, Kashipur in Criminal Case No. 18 of 2000, whereby, said court has affirmed the conviction of the revisionist relating to offence punishable under Section 409 of I.P.C but reduced the sentence to rigorous imprisonment for a period of one year and to pay fine of Rs. 5000/-.
2. Heard learned Counsel for the parties and perused the record.
3. Prosecution story in brief is that the revisionist was employed with Krishak Seva Sehkari Samiti . The amount of Rs. 9,638/- was collected by him in discharge of this public function,against the goods sold but the same was not deposited in the public account and as such he misappropriated the same. When he was directed to deposit said amount and failed, a first information report was lodged with Police Station Kashipur against him in respect of offence punishable under Section 409 I.P.C. After investigation a charge sheet was filed. The Magistrate concerned after giving necessary copies to the accused, framed charge of offence punishable under Section 409 of I.P.C in response to which he (revisionist) pleaded not guilty claimed to be tried. On this prosecution got examined PW1 Girish Chandra Joshi and PW2 K.C. Tiwari. After hearing the parties the trial court found the accused guilty of charge of offence punishable under Section 409 of I.P.C. After hearing on sentence the trial court sentenced the revisionist to rigorous imprisonment for a period of six years a fine or Rs. 15000/. Aggrieved by said order dated 19.07.2000, passed in Criminal Case No. 11 of 1989 by Additional Chief Judicial Magistrate, Kashipur, District, Udham Singh Nagar, Criminal Appeal No. 18 of 2000 was filed by the convict before Sessions Judge. Said appeal was heard and disposed of vide impugned order dated 21.02.2002, passed by Additional Sessions Judge/Fast Track Court Kashipur, whereby, the conviction of the revisionist was affirmed under Section 409 I.P.C but the sentence was reduced to rigorous imprisonment for a period of one year and also to pay a fine of Rs. 5000/-. Hence this revision.
4. Learned Counsel for the revisionist submitted that the prosecution has not proved whether, the revisionist was Field Assistant or the seller, as such unless the nature of public duty in clarified, he cannot be held guilty of the offence punishable under Section 409 of I.P.C. It is also contended that the prosecution has failed to produce the forms and details relating to the issuance of the stock to the revisionist, in respect of which it is said that he did not deposit the amount received by him.
5. Having examined the papers and records, this Court finds that it is no where denied by the revisionist that he was engaged with Kashipur Krishak Seva Sehkari Samiti, and his duty was to sell the commodity like kerosene oil or sugar to the farmers and deposit the amount under proper head. PW1 Girish Chand Joshi Assistant Development Officer has stated on oath that from 22.01.1977 to 20th of December 1982, he (PW1) was Managing Director of the Kashipur Krishak Seva Sehkari Samiti and accused/revisionist Om Prakash Saini was the seller of said society. He has further stated that duty of the revisionist was to sell the stock entrusted to him and to deposit the money received from the farmers as price. The aforesaid witness has given all the details and also proved the documents evidence on the basis of which the trial court and the appellate court have come to the conclusion that it is the revisionist who failed to show where the stock of kerosene oil, sugar and cloth amounting of Rs. 7826/- has gone which was entrusted to him for sale. From the documentary evidence on record it also appears that the revisionist has admitted his guilt before the departmental authority. He could nor explain before the trial court as to what happened to the stock entrusted to him and why the price there of was no deposited under the proper head of the society. On the factual aspects of the matter since two courts below have already applied their mind, this Court is not inclined to reassess evidence on record. In its revisional jurisdiction, this Court can interfere with the impugned order provided there is illegality in the order in holding the accused guilty. It is not a case where there is no evidence on record or where there is no sufficient evidence on record to prove the charge against the revisionist. Therefore, this Court concurs with the court below that the revisionist is guilty of charge of offence punishable under Section 409 I.P.C.
6. However, on the point of sentence, it is pleaded before this Court that the revisionist is more than 75 years old, and no useful purpose would be served by sending him to jail again. He had been in jail for more than one month after the appeal was decided by the appellate court. He had been in jail also at the time when the trial court convicted him. Apart in this he had been in jail at the time of investigation. Considering of said period and age of the revisionist, this Court is of the view of that sentence awarded by the appellate court can be reduced to the period already under gone, and also to the fine as directed by the appellate court to be deposited by him.
7. Accordingly, this revision is disposed of affirming the conviction recorded by the courts below against revisionist Om Prakash Saini, in respect of offence punishable under Section 409 of I.P.C, but sentence awarded by the appellate court is reduced to the period already undergone, maintaining the direction to pay a fine of Rs. 5000/, by the appellate court. In default of payment of said fine the revisionist shall undergo further imprisonment for a period of six months as directed by the appellate court. If the fine has already been deposited, the same shall be adjusted. Lower court record be sent back.