IMPORTANT POINT
Court is under obligation in terms of Section 361 Cr.P.C. to apply one of the other beneficial provision; be it Section 360 Cr.P.C. or provisions of Probation of Offenders Act.

JUDGMENT

Dr. Arijit Pasayat, J.—Leave granted.

2. Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Madhya Pradesh High Court, Indore Bench. The appellant was found guilty of offence punishable under Section 379 of the Indian Penal Code, 1860 (in short the IPC) and was sentenced to undergo rigorous imprisonment for three years for stealing an attache containing about Rs.55,000/- from the possession of the complainant Vinod Kumar Aggarwal while he was travelling in a bus and had got down leaving this attachi behind.

3. The trial court had found the accused guilty. The appeal filed before the first appellate authority was dismissed and so was the revision petition by the impugned judgment.

4. Background facts in a nutshell are as follows:

Complainant Vinod Kumar Aggrawal lodged report at the Police Post Bakaner on 25.12.1992 at about 7.30 p.m. that he had come to Manawar, Bakaner, Singhana, Gandhwani for recovery of due money from the merchants of the tea leaves supplied by him. In the morning, he had received money from Sugam Kirana and Gani Mohammad etc. in Bakaner and after recovery of money from Singhana Gandhwani had come to Manawar and also recovered the money from the parties in Manawar and took seat in the Manawar - Dhamnod Bakshi Bus at 6.30 p.m. in the evening. He had kept one attache containing Rs.50-60 thousands of all denominations inside by his side. On arrival at Bakaner, he went to meet Kailash Rathore for five minutes. When he returned back he did not find his attache. Someone had stolen about Rs.50-60 thousand alongwith the attache. Two receipt books in the name of the shop Atul & Shyam, tea leaves sample, one diary and one blue colour muffler were also lying in the said attache. On the basis of this report of the complainant, an FIR bearing No. 8/60 was registered with Police Post Bakaner and thereafter the Main Crime No. 717/92 was registered with the Police Station Manawar and investigation was started. On completion of investigation, charge sheet was submitted against the accused in the Court.

5. The Courts below on consideration of the material on record convicted the accused. Emphasis was laid on the recovery of the amount and the attache. Though a plea was taken that father of the accused had given the money, he could not establish his capacity to give the money to the accused. The sources indicated were found to be totally unacceptable.

6. Learned counsel for the appellant submitted that there was no proper identification of the so called attache which was stolen. In any event the evidence is not sufficient to come to a conclusion about commission of offence punishable under Section 379 IPC. Additionally it was submitted that the effect of Sections 3 and 4 of the Probation of Offenders Act, 1958 (in short the P.O. Act) in the background of what is stated in Section 360 of the Code of Criminal Procedure, 1973 ( in short the Code) has not been kept in view.

7. Learned counsel for the respondent on the other hand supported the judgment of the courts below.

8. We find that the evidence of PW 9 is clear and cogent. He had identified the attache which was recovered from the possession of the accused. Explanation was offered about the source of money and the same was found to be wholly unacceptable. The source of the sum of about Rs.55,000/-, the possession of which was established was not explained.

9. We do not find any infirmity in the conclusion arrived at by the courts below in analyzing the evidence to fasten the guilt on the accused.

10. The residual question is applicability of Sections 3 and 4 of the P.O. Act and Section 360 of the Code.

11. Where the provisions of the P.O. Act are applicable the employment of Section 360 of the Code is not to be made. In cases of such application, it would be an illegality resulting in highly undesirable consequences, which the legislature, who gave birth to the P.O. Act and the Code wanted to obviate. Yet the legislature in its w