RAJIV MANGILAL JAIN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The applicant-convict has approached this Court under Sec. 397 of the Code of Criminal Procedure, 1973 (for short "the Cr. P. C.") after being convicted by the trial Court and sentenced to suffer rigorous imprisonment for one year with fine of rupees one thousand and after the conviction and sentence being confirmed by the learned Additional Sessions Judge by judgment dated 20-6-1997.

(2.) Learned Counsel Mr. Chirag Patel, appearing for the applicant, restricted his argument to avail the benefit of probation under the provisions of Sec. 360 of the Cr.P.C. He submitted that, even after conviction of the applicant for serious offence punishable under Sec. 406 of the Indian Penal Code, 1860 (for short "the I. P. C."), the applicant was entitled to be considered under the provisions of Sec. 360 of the Cr.P.C. in view of the facts that the amount alleged to have been misappropriated by the applicant was refunded to the original complainant, that he was only aged 25 at the time of the offence, that it was his first offence and he had clean antecedents and that no other allegation was made against his character or regarding his activities. It was, on that basis, submitted by the learned Counsel that the trial Court as well as the appellate Court had failed to consider those relevant factors and, after about 17 years of the offence, the applicant was facing imprisonment for his first offence, even as he was acquitted of the charges for the offences punishable under Secs. 409 and 420 of the I. P. C.

(3.) Learned A. P. P., submitted that the trial Court had formed a firm opinion that the offence committed by the applicant was required to be severely dealt with, and in absence of any evidence regarding the nature of his physical disability, the applicant was rightly not given the benefit of being released on probation.