JUDGMENT - B.B. VAGYANI, J.:---Heard learned Advocate Shri Prashant Deshmukh for the petitioner and learned A.P.P. Shri M.S. Indani for respondent State.

2. The petitioner herein was prosecuted for having committed offence punishable under section 409 of Indian Penal Code. Petitioner, at the relevant time, i.e. between 19-8-1982 to 4-9-1984 was Headmaster of Central Primary School at Panranjangaon. The said primary school was under the management of Zilla Parishad, Aurangabad. At the material time the petitioner received consolidated salary cheque on 4th of December, 1982, from Panchayat Samiti, Paithan. The salary was for the month of November, 1982, to be paid in the month of December, 1982. It is prosecution case that accused misappropriated certain amount. Similarly, he did not pay the salary of Rs. 660-20 to prosecution witness Shaikh Tajoddin. In the monthly pay bill of November, 1982, Ex. 20, there was no signature of co-teacher Shaikh Tajoddin on the revenue stamp. Shaikh Tajoddin asked accused as to why his salary was not paid. Accused replied that he would pay his salary afterwards. It is prosecution case that accused misappropriated the amount of Rs. 660-20 and, after considerable lapse of time, paid Rs. 660-20 to Shaikh Tajoddin in instalments.

3. Charge-sheet came to be filed after completion of the investigation. The prosecution led evidence. Learned Judicial Magistrate, First Class, accepted the prosecution evidence and convicted the petitioner accused under section 409 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 3,000/- in default of payment of fine, to suffer simple imprisonment for four months.

4. Feeling aggrieved by the order of conviction and sentence, the petitioner preferred Criminal Appeal No. 50/1991 in the Sessions Court at Aurangabad. The Additional Sessions Judge, Aurangabad, allowed the Criminal Appeal partly. The order of conviction is maintained, however, the sentence imposed by the Judicial Magistrate, First Class, is modified. The learned Additional Sessions Judge reduced the sentence till rising of the Court and to pay fine of Rs. 500/-; in default, to undergo simple imprisonment for one month. The correctness of this impugned order dated 20-1-1995 passed by the Additional Sessions Judge, Aurangabad, is challenged by the original accused in this criminal revision application.

5. Learned Advocate Shri Prashant Deshmukh submitted that the present petitioner had paid the salary of Rs. 660-20 to co-teacher Shaikh Tajoddin within a period of one month from the date of misappropriation and, therefore, the petitioner accused should not have been prosecuted for the offence punishable under section 409 of Indian Penal Code. This is the only submission advanced by Shri Prashant Deshmukh. He did not dispute factual position.

6. According to learned Advocate Shri Deshmukh, the State Government has taken a policy decision and, as per this policy, if the amount misappropriated is deposited within a period of one month from the date of misappropriation being noticed, no prosecution is to be initiated. According to him, the petitioner cannot be denied the benefit of this general policy of the State Government. He submits next that the Public Prosecutor, who was in charge of the trial, ought to have filed application under section 321 of Criminal Procedure Code for withdrawal of the prosecution. Because of failure of Public Prosecutor in charge of the case to apply for withdrawal under section 321 of Criminal Procedure Code, the petitioner accused has been unnecessarily tried and convicted. When benefit of the policy of the Government is extended to other Government employees, there is no reason for denial of such benefit to the present petitioner. In order to support his submission, learned Advocate Shri Prashant Deshmukh heavily relied upon decision of this Court in the case of (Dagadu Shamrao v. State of Maharashtra)1, 1983(2) Bom.C.R. 424 .

7. On t

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