HARISH CHANDRA MISHRA, J. - (1.) HEARD learned counsel for the petitioner and learned A.P.P. for the State as also learned counsel for opposite party No.2. This revision is directed against the Judgment dated 30.1.2009 passed in Criminal Appeal no. 23 of 2008, whereby the said appeal was dismissed by the learned Sessions Judge, Lohardaga, which was preferred against the Judgment passed by learned Judicial Magistrate 1st Class, Lohardaga in Complaint Case no. 71 of 2004/Tr. No. 33 of 2008, whereby the petitioner was convicted for the offence under Sections 419, 468 and 471 of the Indian Penal Code and upon hearing on the point of sentence, the petitioner was denied the benefit of Probation of Offenders Act and he was sentenced to undergo simple imprisonment for six months for the offence u/s 419 of the IPC, simple imprisonment for two years along with a fine of Rs. 5000/ - for the offence u/s 468 of the IPC and simple imprisonment for six months for the offence u/s 471 of the IPC. All the sentences were directed to run concurrently.
(2.) THE petitioner filed the appeal before the Sessions Judge, Lohardaga challenging the Judgment of conviction and Order of sentence passed against him, which was registered as Criminal Appeal No. 23 of 2008. The said appeal was dismissed by Judgment dated 30.1.2009, whereby the conviction of the petitioner was altered to Sections 468 and 420/511 of the Indian Penal Code and he was sentenced to undergo simple imprisonment for two years along with a fine of Rs. 5000/ -, in default thereof, to further simple imprisonment for one month for the offence u/s. 468 of the IPC and simple imprisonment for two years along with a fine of Rs. 1000/ -, in default thereof, to undergo further simple imprisonment for fifteen days for the offence u/s. 420/511 of the IPC., and both the sentences were ordered to run concurrently. Learned counsel for the petitioner has confined his arguments only to the point of sentence passed by the Court below and has submitted that the Court below has denied the benefit of provision of Probation of Offenders Act or of Section 360 Cr.P.C. to the petitioner without any cogent reason. The impugned Judgment passed by the Appellate Court would show that benefit of Probation of Offenders Act was denied to the petitioner only because of the fact that the petitioner was found guilty for forging sale deed for making claim over the property of his own brother. Learned counsel accordingly submitted that this cannot be a ground for denying the benefit of Section 360 Cr.P.C. to the petitioner and has prayed that the said benefit be given to the petitioner.
(3.) LEARNED A.P.P. for the State and learned counsel for the opposite party no. 2 have not objected the prayer. After having heard learned counsels for both sides and upon going through the materials on record, I find that the petitioner has been convicted for the offence as aforesaid, but from the judgments passed by both the Courts below, it appears that no previous conviction of the petitioner was proved and in that view of the matter, the petitioner was entitled to the benefit of Section 360 Cr.P.C. Accordingly, the orders of sentence passed by the Court below against the petitioner are hereby, set aside and the petitioner is given the benefit of Section 360 Cr.P.C. and he is directed to be released upon entering into a bond of Rs. 10,000/ - with two sureties of the like amount each, for maintaining peace and be of good behaviour for a period of six months and to appear in the Court below for receiving the sentence, if called upon in the meantime. The petitioner is directed to appear in the Court below for executing the bond as aforesaid within a period of one month from today, failing which, the Court below shall issue the process compelling the attendance of the petitioner for entering into the bond. With this modification in sentence, this revision is dismissed.;