The main legal point established in the judgment is that the court has the discretion to reduce the sentence based on the circumstances of the case, including the repayment of the misappropriated amount and the time already served by the petitioner.

Harnaresh Singh Gill, J.

The present petition has arisen out of the judgment dated 28.8.2012 passed by Sessions Judge, Hoshiarpur vide which the appeal filed by the petitioner, challenging the judgment of conviction and order of sentence dated 5.10.2009, passed by Additional Chief Judicial Magistrate, Hoshiarpur in case FIR No. 193 dated 25.6.2002 under Section 408 of the Indian Penal Code, registered at Police Station Sadar, Hoshiarpur, was dismissed. However, while monitoring the conviction of the petitioner, the substantive sentence awarded by the trial Court, was modified and reduced to one year.

2. The brief facts of the present case are that on the complaint of Satish Kumar, partner of M/s Super Star Rubber Industries, the above said FIR was registered against petitioner-Rajinder Singh @ Rana who had been employed as Salesman-cum-clerk in the said company since 1.7.2001 and his job was to promote the sale and collect cash from the parties and deposit the same in the account of the company. It is alleged that in the year 2000-2001, the material prepared by the company was sent to various customers in Rajasthan, against proper bills and there were more than 56 customers from whom the due amount was to be collected. Petitioner-Rajinder Singh was deputed to collect the due amount from the companies from Rajasthan in the month of March 2002. On 10.5.2012, the petitioner returned from Rajasthan and had produced few receipts of cash credited by him from various customers. He was asked by the company to produce all receipts of cash collected by him but he could not give satisfactory reply and after calculation, it was found that he had collected Rs. 2,53,692/- from various parties/customers. It was further alleged that Rajinder Singh @ Rana had deposited only Rs. 53,290/- out of the above said amount in the account of the company and he had retained the remaining amount for his personal use and, thus, had misappropriated the same. Accordingly, FIR under Section 408 of the Indian Penal Code was registered against the petitioner whereafter he was arrested and the investigating officer had recorded his statement under Section 161 of the Code of Criminal Procedure.

3. Charge was framed against the petitioner under Sections 408 IPC to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution had examined PW-1 Satish Kumar-complainant, PW-2 Satnam Singh and PW-3 Head Constable Tarsem Singh.

5. In the statement recorded under Section 313 Cr.P.C., the accused denied the prosecution case and pleaded false implication.

6. After taking into consideration the evidence on record and the testimonies of the witnesses, the trial Court vide judgement and order dated 5.10.2009 convicted the petitioner under Section 408 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1500/- and, in default of payment of fine, to further undergo imprisonment for 15 days.

7. Aggrieved of the said judgment and order, petitioner preferred an appeal before the Sessions Judge, Hoshiarpur. The said appeal was dismissed by the Appellate Court vide judgment dated 28.8.2012. However, the substantive sentence awarded by the trial Court was modified and the same was reduced to one year.

8. I have heard the learned counsel for the petitioner as well as the learned State counsel and with their able assistance, I have gone through the records of the Courts below.

9. It has been argued by the counsel for the petitioner that it has not been appreciated by the Courts below that the disputed amount was Rs. 2,53,692/- and the petitioner had deposited the amount of Rs. 53,290/- with the company of the complainant. Another amount of Rs. 20,000/- was received by the complainant from the petitioner in the presence of his brother and wife. It has been further argued that the complainant had received a cheque of Rs. 1,80,000/- from the wife of the petitioner which was not men