DIVECHA - (1.). The judgment and order of conviction and sentence passed by the learned Judicial Magistrate (First Class) at Mehmedabad on 31/01/1989 in Criminal Case No. 1086 of 1986 as affirmed in appeal by the learned Sessions Judge of Nadied on 31/08/1990 in Criminal Appeal No. 5 of 1989 is under challenge in this revisional application preferred by original accused No. 1.
(2.). The petitioner herein was convicted of the offence punishable under Sec. 408 of the Indian Penal Code, 1860 (the IPC for brief) and sentenced him to rigorous imprisonment for six months and fine of rupees ons hundred in default of which rigorous imprisonment for 15 days more.
(3.). The facts giving rise to this revisional application are not many and not much in dispute. The petitioner herein was in the employment of one Sinhuj Dudh Utpadak Sahkari Mandli (the Society for convenience) at the relevant time. According to the prosecution case, he and one Somabhai were found to have misappropriated more than Rs. 23,000.00 on different dates. Thereupon the complainant filed his complaint of the incident. On completion of the investigation, the necessary charge-sheet was submitted to the Court of the Judicial Magistrate (First Class) at Mehmedabad charging the petitioner and one Somabhai as the accused with the offence punishable under Sec. 408 of the IPC. It came to be registered as Criminal Case No. 1086 of 1986. The other accused named Somabhai appears to have pleaded guilty to the charge. He was thereupon convicted on his plea of guilt but instead of sentencing him to imprisonment he was ordered to be released on probation on his having paid up the amount misappropriated by him. The present petitioner however did not plead guilty to the charge. He was thereupon tried. After the prosecution evidence was over, his further statement came to be recorded. He did not step into the witness box nor was any witness examined in defence at trial. The defence did not lead any documentary evidence at trial either. After hearing arguments, by his judgment and order passed on 31/01/1989 in Criminal Case No. 1086 of 1986, the learned Judicial Magistrate (First Class) at Mehmedabad convicted the petitioner of the offence punishable under Sec. 408 of the IPC and sentenced him to rigorous imprisonment for six months and fine of rupees one hundred in default of which rigorous imprisonment for 15 days more. Aggrieved thereby, the petitioner carried the matter in appeal before the Sessions Court of Kheda at Nadiad. His appeal came to be registered as Criminal Appeal No. 5 of 1989. By his judgment and order passed on 31/08/1990 in Criminal Appeal No. 5 of 1989, the learned Sessions Judge dismissed the appeal. Aggrieved thereby, the petitioner has invoked the revisional jurisdiction of this Court for questioning the correctness of the judgment and order of conviction passed by the learned trial Magistrate as affirmed in appeal.