STATE OF U P Vs. DEV DUTT SHARMA

JUDGEMENT

(1.) This appeal has been filed on behalf of State of U.P. under section 377 of the Cr P.C., against the judgment and order dated 29.7.1976 passed by the Judicial Magistrate I Class, Khurja whereby he has convicted the opposite party Deo Datta Sharma under section 409 I.P.C. and sentenced him to undergo R.I. for three months. But the opposite party was not sentenced and instead, he was released under section 4 of the U.P. First Offender Act on a probation of good conduct for a year after furnishing a personal bond and two sureties of Rs. 1500/- each within 10 days from the date of judgment. During this period, the accused was ordered to remain under the supervision of District Probation Officer. It was further ordered that in case the accused is found guilty of any offence then he can be called to undergo the above sentence.

(2.) The brief fact of the prosecution story is that Deo Datta Sharma was posted as Kurk Amin by the order of the District Magistrate, Bulandshahr in the Co-operative Department and his area was Block Development Officer, Pahasu. He recovered a sum of Rs. 979.22 ps. from different persons by receipt nos. 1/135 to 15/135 within the period from 19.8.1971 to 27.10.1971. He did not deposit the said amount and, therefore, explanation was called for. In reply to the explanation, the accused Deo Datta Sharma admitted the recovery of the above amount and prayed for 15 days time to deposit the same. But he failed to deposit the said amount. Thereupon, Mohan Lal Sharma, Incharge Kurk Amin sent written report to 5 0. Khurja on 10.3.1972 and a copy to S.P. Bulandshahr. A case was registered and after investigation, charge sheet (Ex.Ka33) was submitted against the accused.

(3.) The accused pleaded not guilty and claimed to be tried. In his statement u/s. 313-Cr. PC., Deo Datta Sharma accused has admitted the different recoveries made by him and deposed that he fell ill after recovery of the amount and was not able to move and he deposited the whole of the amount when he recovered from illness. He has deposited the receipt of deposit of the said amount. One receipt is dated 28.4.1972 by which an amount of Rs. 690/- was deposited and another receipt was dated 15.1.1973 by which Rs.289.22 was deposited. At the time of defence, the accused has confessed the guilt and has prayed that his case be considered sympathetically because he has not misappropriated the amount with any bad intention and he is very poor man, suspended from the office having worst economic position.