Temporary nature of misappropriation, timely deposit of amounts, and absence of untoward incidents during trial period influenced the court's decision.

ORDER :

ORDER IN CRIMINAL REVISION APPLICATION NO. 471 of 2022

1. Leave to amend.

2. By way of preferring this Criminal Revision Application under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, applicant has prayed to quash and set aside the judgment and order of conviction and sentence passed by learned 3rd Additional Sessions Judge, Kheda at Kapadwanj in Criminal Appeal No.29 of 2021 (Old Criminal Appeal No.44 of 2019) as well as the judgment and order passed by learned Chief Judicial Magistrate, Kapadwanj in Criminal Case No.1508 of 2014 and further be pleased to acquit the present applicant from above all charges.

3. Heard learned advocate appearing for the applicant.

4. It is submitted by learned advocate appearing for the applicant that impugned judgment and order passed by learned Judge is unjust, improper and incorrect and against good conscience. That in fact no misappropriation has been committed by the applicant and he receives the amount from customer and deposited on next date and he has not taken to the home. That no independent witness has been produced by the prosecution to prove his case and trial court had materially erred in not considering the defence witness and documentary evidence. In support of his arguments, learned advocate appearing for the applicant has relied upon the judgment reported in 2017 (1) GLR 736.

5. Issue requires consideration.

6. Rule. Learned APP waives service of notice of rule for and on behalf of respondent-State.

(B.N. KARIA, J)

ORDER IN CRIMINAL MISC.APPLICATION (REGULAR BAIL) NO. 1 of 2022

1. Rule. Learned APP waives service of notice of rule for and on behalf of respondent-State.

2. By way of preferring this application, applicant has prayed for following reliefs:

“(A) Admit and allow this application;

“(B) Your Lordship may be pleased to suspend the judgment and order of conviction and sentence passed by learned 3rd Additional Sessions Judge, Kheda at Kapadwanj in Criminal Appeal No.29 of 2021 (Old Criminal Appeal No.44 of 2019) as well as the judgment and order passed by Chief Judicial Magistrate, Kapadwanj in Criminal Case No.1508 of 2014 and further be pleased to acquit the present appellant from above all charges.”

3. Heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State.

4. It is submitted by learned advocate appearing for the applicant that impugned judgment and order passed by learned Judge is unjust, improper and incorrect and against good conscience. That in fact no misappropriation has been committed by the applicant and it’s just that he receives the amount from customer and deposited on next date, not he has taken to the home. That no independent witness has been produced by the prosecution to prove his case and trial court had materially erred in not considering the defence witness and documentary evidence. Hence, it is requested by learned advocate appearing for the applicant to allow present application.

5. Learned APP appearing for the respondent-State has strongly objected the submissions made by learned advocate appearing for the applicant and requested to dismiss the present application.

6. Having heard learned advocate appearing for the applicant and learned APP appearing for the respondent-State as well as record produce before this Court, it appears that alleged amount of misappropriation was temporary in nature not a single amount was taken by the present applicant at his home. There was a delay in depositing the amount of customers by the present applicant from two to twenty two days. In fact, whatever amount as alleged by the prosecution is deposited by the present applicant in the account of the customers, after making entry in the passbook of the respective customers on the very same day. As it is undisputed fact that applicant was released on regular bail during the trial and there is nothing pointed out by the prosecution that any untoward incident was taken place or the applicant has misu