DK Sinha, J -The petitioner has preferred this Cr. Revision against the judgment passed by the 4th Additional Sessions Judge, Palamau at Daltonganj in Cr. Appeal No. 41 of 1999 on 30.9.99 whereby and whereunder the judgment of conviction recorded by Shri Sahjanand Sharma, Judicial Magistrate, 1st Class, Latehar against the petitioner for the offence under Section 409 I.P.C. awarding sentence of three years rigorous imprisonment and fine of Rs.5,0001- with default stipulation was affirmed.

2. The prosecution story in short was that on the written report presented by the informant Block Development Officer, Mahuadanr, with reference to the letter No. 564(C) dated 17.7.96 addressed to the Deputy Collector (Establishment) Palamau, a case for the offence under Section 409 I.P.C. was registered against the petitioner by lodging F.I.R. giving rise to Mahuadanr P.S. Case No.29/96 on 10.10.96 for the misappropriation of Government money to the tune of Rs.3,16,753=21paise, allocated for social security pension to the old age persons, but it were never distributed to them as alleged and at the relevant time the petitioner was Anchal Nazir.

3. In course of trial, after the statement of the petitioner was recorded under Section 313 Cr. P.C. on 17.12.98 almost on the same day, a petition was moved on behalf of the prosecution under Section 319 Cr. P.C. to issue summons by transposing the informant Shri Awadhesh Ram B.D.O.-cum-C.O. as accused on the materials collected in course of trial, of petitioner and considering its merit, summons was issued.

4. The judgment passed in the impugned appeal No. 41/99 indicates that the trial of the informant turned accused Awadhesh Ram B.D.O.-cum-C.O., arrayed at later stage was separated and the case of the petitioner being at the fag end of conclusion was decided in his conviction. It was observed by the appellate court that the witnesses produced and examined on behalf of the prosecution were cross-examined at length and that the petitioner was also given opportunity to adduce evidence in his defence. The trial was concluded by deciding the merit of the case within the time frame of eight months as observed in Cr. Misc. No. 4250 of 1998(R) by Ranchi Bench and therefore, there was no occasion to remand the case for re-trial.

5. Mr. Prasad, learned Counsel submitted that the petitioner was prosecuted on the basis of an enquiry report of the S.D.O. vide letter No. 564(C) dated 17.7.96 addressed to the Deputy Commissioner (Establishment) and apparently no allegation was made in the written report against the petitioner or the informant B.D.O.-cum-C.O. who was later on arrayed as an accused. Such letter of S.D.O. does not whisper the complicity of the petitioner in any manner rather the complicity of the informant B.D.O., Mahuadanr who had withdrawn Rs.3lakhs allocated for pension to the old people under social security scheme. On the point of law Mr. Prasad assailed the judgment of trial court by submitting that the petitioner's conviction on the evidence of P.W.2 by adducing exculpatory statement who was later on arrayed as an accused under Section 319 Cr. PC., cannot sustain without tendering pardon to the accomplice witness under Section 306 Cr. PC.

6. Mr. Prasad further pointed out that the petitioner was found absent since 16.10.95 and for that an enquiry was conducted by Deputy Collector, Latehar who submitted his report on 11.7.96 but the case was instituted on 10.10.96 without explanation of such inordinate delay. though in the report it was specifically alleged that the amount earmarked for social security pension was withdrawn on 20.10.95 by the Circle Officer, Mahuadanr on 20.10.95 but the amount was not shown to be disbursed in the account book and adverse inference was taken by the authority. Moreover, the prosecution was launched against the petitioner after one year on 10.10.96 for the alleged occurrence of withdrawal on 20.10.95.

7. Mr. Prasad attracted the attention by submitting that n