The court can grant probation to offenders convicted of non-capital offences, considering their character and circumstances, even at the appellate stage.

JUDGMENT (ORAL)

Meenakshi Madan Rai, J. -The Revisionist was employed as a Senior Product Executive of Shriram Transport Finance Company Limited on 2007-2015 and entrusted with the responsibility of collecting Equated Monthly Installment (EMI) from customers who had availed of loan from the said company. On 04-09-2017, one Purna Bahadur Mukhia, Branch Manager, Shriram Transport Finance Company Limited, Jorethang Branch, filed a Complaint, Exhibit - 1, on behalf of the said Company, stating that the Revisionist, a permanent resident of Timburbong, Soreng, an employee of the company had collected EMIs from borrowers, amounting to a sum of Rs. 5,76,780/-(Rupees five lakhs, seventy six thousand, seven hundred and eighty) only, but had not deposited the collected amounts at the branch office. The Revisionist had misappropriated the said amount which had been deposited with him by fourteen customers. Investigation was taken up after registration of the case and on completion of investigation, Charge-Sheet was submitted against the Revisionist under Section 408 of the Indian Penal Code, 1860 (hereinafter, the "IPC").

(i) The Learned Trial Court framed charge against the Revisionist under Section 408 of the IPC, to which he entered a plea of 'not guilty' and claimed trial. The Prosecution examined twenty-four witnesses including the Investigating Officer (I.O.) to establish their case. This was followed by the examination of the Accused under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter, the "Cr.P.C."), during which he claimed innocence and asserted that he was falsely implicated in the matter. The Court of the Learned Judicial Magistrate, Jorethang Sub-Division, South Sikkim, at Jorethang, on consideration of all the evidence and materials before it convicted the Revisionist under Section 408 of the IPC, vide its Judgment, dated 28-022022, in GR Case No.15 of 2019 (State of Sikkim vs. Chitraman Chettri). He was sentenced to undergo simple imprisonment of one year, with fine of Rs. 5,000/- (Rupees five thousand) only, for the offence under Section 408 of the IPC, with a default clause of imprisonment, vide the Order on Sentence of the same date.

(ii) On 24-03-2022 against the said Order of conviction, an Appeal was filed before the Court of the Learned Sessions Judge, at Namchi, Sikkim, being Criminal Appeal No.03 of 2022 (Chitraman Chettri vs. State of Sikkim) and on 28-03-2022, the Revisionist was enlarged on bail. The Court of the Learned Sessions Judge, vide its impugned Judgment, dated 28-02-2023, in Criminal Appeal Case No.03 of 2022 (Chitraman Chettri vs. State of Sikkim) upheld the Judgment of conviction and Order on Sentence. The prayer for probation, in terms of Section 4 of the Probation of Offenders Act, 1958 (for short "Probation Act"), was however rejected by the Court of the Learned Sessions Judge. Against the said Judgment this Revision has been preferred.

2. Learned Counsel for the Revisionist submits that the only point that he seeks to press in Revision before this Court is that the Revisionist be extended the benefit of Section 4 of the Probation of Offenders Act, 1958. That, he has no criminal antecedents and his aged parents who live in a remote part of Soreng District, Sikkim, are dependent on him for their livelihood which he is presently eking out by selling vegetables. That, he has a wife, who is unemployed and a daughter aged about six years, who are also completely dependent on him. That, incarcerating him would in fact be extending the penalty to the family members as in his absence they would be deprived of their day to day requirements and means of livelihood. That, till date he has returned a sum of Rs. 2,50,000/-(Rupees two lakhs and fifty thousand) only, to the persons from whom he had collected the EMIs. That, should this Court be inclined to consider his prayer for probation, he undertakes to repay the remaining amount within a period of twelve months to the persons from whom he had