- (1.) VIJAY Kumar Verma, J. This Appeal for enhancement of sentence has been preferred by the State of U. P. against the judgment and order dated 7-5-1983, passed by Shri Jai Singh, the then Judicial Magistrate, Maharajganj (Gorakhpur) in Criminal Case No. 148/82, State v. Ram Chander, under Section 409, I. P. C. , P. S. Kampiyarganj, Gorakhpur, whereby after convicting the accused-respondent under Section 409, I. P. C. and sentencing him to undergo imprisonment for six months, he was released on probation of good conduct on executing personal bond for Rs. 2,000/- and furnishing two sureties each in the like amount.
(2.) THE accused-respondent Ram Chander was posted as Kink Amin in Block Kampiyarganj, District Gorakhpur in the year 1975. An F. I. R. was lodged at P. S. Kampiyarganj on 11-12-1975 and a case under Section 409, I. P. C. at Crime No. 266/75 was registered against him. THE allegations made therein are that the accused realized Rs. 2,051. 01 between the period 2-5-1975 to 15-6-1975 from the members through receipt No. 5625/30 to 5625/50, but he did not deposit that amount in Co-operative Bank, Anand Nagar (Farinda) Branch and he misappropriated that amount. THE investigation was entrusted to Special Investigating Branch (Co- operative ). After Investigation, charge-sheet was submitted on 24-3- 1982 against the accused-respondent in the Court of Judicial Magistrate, Maharajganj (Gorakhpur) showing him to be absconder. After taking cognizance, the accused was summoned for trial. He appeared in Trial Court on 24-2- 1983. The Charge under Section 409, I. P. C. was framed against the accused on 7-5-1983, to which he pleaded guilty. In his statement also the accused confessed his guilt. Thereafter, the learned Judicial Magistrate vide impugned judgment convicted the accused Ram Chander under Section 409, I. P. C. and sentenced him to undergo imprisonment for six months, but instead of sending him to jail, benefit of Section 4 of the U. P. First Offender Probation Act was extended and he was released on probation on executing a personal bond of Rs. 2,000/- and furnishing two sureties each in the like amount on the condition to keep peace and be of good behaviour during the period of two years. Hence, this Appeal for enhancement of sentence after seeking leave of the Court has been preferred by the State of U. P. We have heard Mrs. N. A. Monis, learned A. G. A. for the State-appellant and Sri R. C. Yadav, learned Counsel for the respondent- accused.
(3.) IT was strenuously contended by the learned A. G. A. that benefit of U. P. First Offenders Probation Act could not be extended to the accused, because the offence under Section 409, I. P. C. is punishable with imprisonment for life and hence, the impugned order of releasing the respondent-accused on probation being wholly illegal is liable to be set-aside and keeping in view the heinousness of the offence, the accused-respondent should be adequately punished. On the other hand, it was submitted by learned Counsel for the accused-respondent that having regard to the fact that misappropriated money was deposited by the accused, benefit of U. P. First Offenders Probation Act was rightly given to him by the learned Judicial Magistrate and hence this Court will not be justified in making interference in the impugned order. It was also submitted by the learned Counsel for the accused-respondent that the offence was committed about 32 years back and if this Court comes to the conclusion that benefit of probation of good conduct cannot be given to the accused, then lenient view in the matter of sentence be taken.;