The main legal point established in the judgment is that failure to complete contracted work and embezzlement of government funds can lead to conviction under Section 409 of the Indian Penal Code.

JUDGMENT :

1. Heard Mr. Rajesh Kumar Mahtha, the learned counsel appearing on behalf of the petitioner.

2. Heard Ms. Vandana Bharti, the learned A.P.P. appearing on behalf of the Opposite Party-State.

3. The present criminal revision petition is directed against the Judgment dated 02.08.2013 passed by learned Sessions Judge, Bokaro in Criminal Appeal No. 78/2013 whereby and whereunder the learned appellate court upheld the Judgment of conviction of the petitioner under Section 409 of the Indian Penal Code and modified the sentence of the petitioner to undergo Simple Imprisonment for one year and fine of Rs. 5,000/- and in default of payment of fine, the petitioner was directed to further undergo Simple Imprisonment for 15 days and dismissed the criminal appeal.

4. The petitioner had preferred the criminal appeal against the Judgment of conviction and the order of sentence dated 16.04.2013 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. Case No. 23 of 2002 / Trial No. 297 of 2013 [arising out of Chas (M) P.S. Case No.02/2002 dated 08.01.2002] whereby and whereunder the petitioner was convicted for the offence under Section 409 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment for 02 years and fine of Rs. 3,000/- and in default of payment of fine, to further undergo Simple Imprisonment for two months and the period undergone in jail custody during trial was directed to be set off.

Arguments on behalf of petitioner

5. The learned counsel appearing for the petitioner submitted that the impugned judgments are perverse, in as much as, the entrustment of the amount of Rs. 55,000/- has not been proved by cogent evidence, as no documentary evidence to that effect has been exhibited. It was not disputed by the learned counsel for the petitioner that admittedly some oral evidence has come in connection with payment of Rs. 55,000/- to the petitioner.

6. The learned counsel further submitted that the entire dispute arises out of an agreement for execution of work executed between the petitioner-contractor and the government. The first measurement in connection with the work was taken on 15.03.1998, wherein the work was found to be done to the extent of Rs. 43,622/- and after expiry of more than one year, another measurement was taken on 28.06.1999 wherein the work was found to be executed to the extent of Rs. 17,853/- only. He further submitted that the entire dispute arises out of alleged non-execution of the part of the work arising out of the agreement and the dispute falls within the realm of civil dispute.

7. He further submitted that pursuant to the order dated 19.06.2002 passed in B.A. No.1839/2002, the petitioner has deposited an amount of Rs. 37,147/- (Rs.55,000/- minus Rs.17,853/-) vide Cash Receipt No. 99 dated 16.08.2002 which has been marked as Exhibit-A. He submitted that merely because the petitioner has deposited this amount pursuant to a bail order, the same does not mean that the petitioner has admitted his guilt.

8. However, during the course of argument, the learned counsel submitted that without prejudice to the aforesaid submissions, the petitioner has no objection, if the deposited amount of Rs. 37,147/- is converted into fine and is remitted to the State. The learned counsel further submitted that the present age of the petitioner is more than 60 years and he has already remained in custody for the period from 30.01.2002 to 16.08.2002 i.e. for six and half months during trial and also from 21.09.2013 to 27.09.2013 during pendency of this criminal revision petition and he has no criminal antecedent. The learned counsel also submitted that the sentence may be confined to the period already undergone in custody by the petitioner with enhancement of the fine amount.

Arguments on behalf of Opposite Party-State

9. The learned A.P.P. appearing on behalf of Opposite Party- State opposed the prayer, but at the same time, she did not dispute the fact that the dispute arises out of an agreem