Point of Law: Probation of offender – Grant of benefit - quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay.

ORDER :

Being aggrieved and dissatisfied with judgment dated 4.10.2010 passed by learned Sessions Judge, Bilaspur, District Bilaspur,, Himachal Pradesh in Cr. Appeal No. 3 of 2008, affirming the judgment of conviction and order of sentence dated 26.12.2007 passed by learned Judicial Magistrate First Class, Bilaspur, Himachal Pradesh in case No. 131/2 of 1998/97 titled State vs. Shyam Lal, whereby learned trial Court, while holding the petitioner-accused(hereinafter, ‘accused’) guilty of having committed offence punishable under S. 409 IPC, convicted and sentenced him to undergo simple imprisonment for two weeks and pay fine of Rs.500/- and, in default of payment of fine, to further undergo simple imprisonment for two weeks.

2. In nut shell, the case of the prosecution is that, on 19.7.1995, accused, who was serving as a Process Server in the court of Naib Tehsildar, was handed over summons Exhibit PW-3-/A to be served upon one Sita Ram son of Shri Pohlo Ram for recovery of Rs. 250/-. Though the accused, after having served above named person, collected fine of Rs. 250/- in the presence of person namely Gurnam Singh PW-7, and executed a receipt Exhibit PW-1/B in the presence of Ranjeet Singh, PW-13, however, he failed to deposit the amount in the Government treasury. Subsequently on 24.7.1995, another summon was given to the accused for serving upon PW-8 Sukh Dei, vide entry made in Register, Ext. PW-4/A, for recovery of Rs. 500/-. Accused served PW-8 Sukh Dei with the summons and after having collected fine of Rs. 500/-, executed a receipt Exhibit PW-1/D, in the presence of persons namely, Jai Singh PW-9, Nand Lal PW-10 and Hari Singh PW-11, however, such amount was never deposited in the Government treasury.

3. Since the accused, despite repeated reminders, failed to deposit the amount in Government treasury, an explanation was called from him by PW-2 Roshan Lal, the then Naib Tehsildar Swarghat, but yet accused failed to deposit the fine amount and as such, information was given to the Deputy Commissioner Bilaspur vide Ext. P-3, by Roshan Lal (PW-2). In the aforesaid background matter was reported to the police by PW-2 Roshan Lal, vide Ext. PW-2/A, on the basis of which, FIR Ext. 14/A came to be recorded at Police Station Sadar, Bilaspur.

4. PW-14 ASI Tara Singh, conducted investigation. The leave application, Ext. PW14/A and specimen handwriting of the accused were taken into possession vide memo Ext. PW-14/C. Specimen Handwriting and signatures of the accused were obtained by Shri Arun Bhardwaj, PW-15, the then Executive Magistrate Ghumarwin, which are Exts. PW-14/D-1 to PW-14/D-6 and disputed receipts alongwith aforesaid specimen writing and admitted signatures were sent to the handwriting expert, for comparison, who vide report Exhibit PW-14/E opined that the receipts in issue were issued by the accused and bears his signatures. Exhibit PW-6A and PW-6/B regarding non-deposit of fine, were obtained from PW-6 Gulab Singh. Abstract of duty register Exts. PW-4/A and PW-4/B were also seized form PW-4 Desh Raj

5. After completion of investigation, police presented Challan in the competent court of law, which being satisfied that a prima facie case exists against the accused, charged him for commission of offence punishable under Ss. 420 and 409 IPC, to which he pleaded not guilty and claimed trial.

6. Prosecution, with a view to prove its case, examined as many as 15 witnesses, whereas, accused though in his statement recorded under S. 313 CrPC, denied the case of prosecution in toto but failed to lead any evidence in his defence despite adequate opportunity given to him.

7. Learned trial Court, on the basis of evidence, led on record by prosecution, though acquitted the accused of charge framed under S. 420 IPC but found him guilty for his having committed offence under S. 409 IPC and accordingly convicted and sentenced him, as per description given herein above.

8. Being aggrieved and dissatisfied with the judgment of conviction and