2026:HHC:29451 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision Nos.194 & 195 of 2011 Date of Decision: 18.07.2026 __________________________________________________________________________ 1. Cr. Revision No.194 of 2011 Sunil Kumar ……...Petitioner Versus State of Himachal Pradesh …....Respondent 2. Cr. Revision No.195 of 2011 Sunil Kumar ……...Petitioner Versus State of Himachal Pradesh …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. _____________________________________________________________________________ For the Petitioner(s): Mr. Vinod Thakur, Advocate. For the Respondent: Mr. Anish Banshtu, Deputy Advocate General, for State. __________________________________________________________________________ Sandeep Sharma, J. (Oral) Above captioned criminal revision petitions filed under Section 397 read with Section 401 of CrPC lay challenge to judgments dated 05.08.2011 passed by the learned Sessions Judge, Sirmaur, District Nahan, H.P., in Criminal Appeal Nos.50-Cr./10 of 2009 & 56-Cr.A/10 of 2009, affirming judgment of conviction and order of sentence dated 15.09.2009 passed by learned Chief Judicial Magistrate, Sirmaur, District at Nahan, H.P., in Criminal Case No.17/2 of 2006 and judgment of conviction dated 15.09.2009 and order of sentence dated 30.09.2009, passed by the learned 2026:HHC:29451 - 2 - Chief Judicial Magistrate, Sirmaur, District at Nahan, H.P., whereby Court below while holding petitioner-accused guilty of his having committed offence punishable under Section 409 of the Indian Penal Code, convicted and sentenced him to undergo simple imprisonment for a period of three years and pay fine of ₹10,000/-. Court further ordered that in case of default of payment of fine, the convict shall further undergo imprisonment for a period of two months for the commission of offence punishable under Section 409 of the Indian Penal Code. 2. Since common questions of facts and law are involved in both the petitions, and petitioner (for short, ‘accused’) in both the cases are same, this Court, after having clubbed both the petitions, heard the same together and are now being disposed of by this common order. However, for the Sake of clarity, facts of Cr. Revision No.194 of 2011, titled as Sunil Kumar Vs. State of H.P., are being discussed hereinbelow. 3. Precisely the facts of the case, as emerge from the record made available to this Court, reveal that complainant Jeet Singh (PW-2), who retired as Peon in the Excise and Taxation Department in the month of September 2004, lodged a complaint, Ex.PW-2/A, at Police Station Nahan, on the basis of which, FIR, Ex.PW11/A, was registered at afore Station, alleging therein that in the month of April 2002, while he was posted at Rajban, he started RD A/c No.570303 through the department. He alleged that his pay was being disbursed by the office of Assistant Excise 2026:HHC:29451 - 3 - Commissioner, District Sirmaur, out of which a sum of ₹1,000/- was being deducted by the accounts branch towards the RD. He alleged that when the pay for the month of August 2004 was disbursed, and no deduction of ₹1,000/- was made from the pay, he visited the office and checked his account and found that no amount was deposited between April 2002 to May 2003, whereas this amount was regularly deducted from his pay. He alleged that a sum of ₹8,000/- was deposited between June 2003 and January 2004, but no money was deposited between February 2004 and August 2004, whereas sum of ₹1,000/- was being regularly deducted from his pay. He alleged that a sum of ₹13,000/- was not deposited between April 2002 to April 2003 and a sum of ₹7,000/- was not deposited with effect from January 2004 to July 2004, and thus, a sum of ₹20,000/- was misappropriated. He alleged that though he brought the matter to the knowledge of the higher officers of the department, but since no action was taken, he was compelled to file complaint to the Police. Police, after having lodged the FIR, handed over investigation to PW-13 Lekh Ram, who seized the acquaintance roll Ex.P-1 to Ex.P-29 vide memo Ex.PW-2/C. He also seized documents regarding disbursement of pay Ex.P-30 to Ex.P-44 vide memo Ex.PW-2/D. Besides above, he also seized the list of pay roll schedule between April 2002 to July 2003 and October 2003 to January 2004, Ex.P-53 to Ex.P-58 vide memo Ex.PW-5/A. Since accused named in the FIR remained Cashier in the office of Assistant Excise Commissioner, District Sirmaur, and they were 2026:HHC:29451 - 4 - entrusted with their duty to deduct the amount, Investigating Officer, after having obtained their appointment order and joining report, Ex.PW-4/A and Ex.PW-4/B, investigated them. 4. After completion of investigation, Police presented challan in the competent Court of law under Section 409 and 420 of the IPC. Learned trial Court, after being satisfied that a prima facie case exists against the accused named in the FIR, proceeded to frame charge against them under Section 409 and 420 of the IPC, to which they pleaded not guilty and claimed trial. 5. With a view to prove its case, prosecution examined 13 witnesses, whereas accused in his statement recorded under Section 313 CrPC though denied the case of the prosecution in toto but, despite opportunity, failed to lead evidence. Petitioner-accused Sunil Kumar stated in his statement recorded under Section 313 CrPC that money was kept in safe condition and not misappropriated, and same was subsequently handed over to Police on its demand. 6. Learned trial Court, on the basis of evidence led on record by the prosecution, though acquitted accused of his having committed offence punishable under Section 420 IPC, but convicted and sentenced him under Section 409, and accordingly convicted and sentenced as per description given hereinabove. 7. Being aggrieved and dissatisfied by the aforesaid judgment of conviction and order of sentence recorded by Court below, accused preferred 2026:HHC:29451 - 5 - appeal in the Court of learned Sessions Judge, District Sirmaur at Nahan, but same was also dismissed vide judgment dated 05.08.2011. In the afore background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and order of sentence recorded by the Court below. 8. In nutshell, case of the accused, as has been highlighted in the grounds of petition and further canvassed by Mr. Vinod Thakur, learned counsel representing the accused, is that Court below has failed to appreciate the evidence in right perspective. Mr. Thakur attempted to argue that initially RD was opened by co-accused Ranjit, and after his retirement accused started deducting amount, which he never misappropriated, rather kept in safe custody and same was subsequently handed over to Police. He submitted that since amount not deposited by the petitioner in the RD was never misappropriated, rather was kept in safe custody, Court below could not have held accused guilty of his having committed offence punishable under Section 409 IPC. He submitted that amount entrusted with the accused was not misappropriated. He further submitted that to invoke Section 409 IPC, it was incumbent upon prosecution to prove that dishonestly accused misappropriated the fund. However, in the case at hand, fund was never misappropriated, rather accused, instead of depositing the same in the RD, kept the same in safe custody on the instructions of the complainant himself. 2026:HHC:29451 - 6 - 9. To the contrary, Mr. Anish Banshtu, learned Deputy Advocate General, while supporting the impugned judgment of conviction and order of sentence recorded by the Court below, vehemently argued that there is no scope of interference on account of concurrent findings of fact and law recorded by the Court below. He submitted that since both the Courts below, after appreciating the evidence, have arrived at a definite conclusion that accused misappropriated the amount, no illegality can be said to have been committed by the Courts below while holding accused guilty of his having committed offence punishable under Section 409 IPC. Mr. Banshtu further submitted that to invoke Section 409 IPC, prosecution was only under obligation to prove entrustment of property as well as misappropriation thereof. He submitted that since it stands duly proved on record that amount deducted on account of deposit in RD was never deposited in the RD, and such factum came to the knowledge after receipt of complaint made by the complainant, no illegality can be said to have been committed by the Court below while holding petitioner-accused guilty of his having committed offence punishable under Section 409 IPC. 10. Having heard learned counsel representing the parties and perused material available on record, vis-à-vis reasoning assigned in the impugned judgment passed by learned Sessions Judge, Sirmaur, affirming judgment of conviction and order of sentence passed by the learned trial Court, this Court is not persuaded to agree with Mr. Vinod Thakur, learned counsel 2026:HHC:29451 - 7 - representing the petitioner, that Court below has failed to appreciate the evidence in its right perspective, rather, this Court is fully convinced that both the Courts below have rightly appreciated the evidence as well as law on the point, and there is no scope of interference. 11. In the instant case, it is not in dispute that complainant Jeet Singh (PW-2) was working as a Peon in the Excise and Taxation Department, and he, during his posting at Rajban, started RD A/c No.570303 through the Department. It is also not in dispute that pay of the complainant was being disbursed by the office of Assistant Excise Commissioner, District Sirmaur, where petitioner-accused remained posted between February 2004 to August 2004. It stands duly proved on record that instructions were given by the complainant in the afore office to deduct ₹1,000/- towards RD, and pursuant to such directions, ₹1,000/- was being deducted by the Accounts Branch. 12. When the pay for the month of August 2004 was disbursed, complainant found that no deduction of ₹1,000/- was made, and on inquiry, it transpired that though sum of ₹1,000/- was deducted from his pay between April 2002 to May 2003, but same was not deposited in his RD. Similarly, he also found that a sum of ₹8,000/- was deposited between June 2003 and January 2004, and thereafter no money was deposited between February 2004 and August 2004. Since aforesaid amount was being regularly deducted from the pay of the complainant, he brought the matter to the higher-ups that a sum of ₹20,000/- has been misappropriated, but 2026:HHC:29451 - 8 - since no action was taken, matter was ultimately reported to the Police, which found during investigation that accused, namely Sunil Kumar as well as Ravinder Kumar, remained Cashier during the period of misappropriation. Petitioner-accused Sunil Kumar remained posted as Assistant Cashier in the office of Assistant Excise Commissioner, Sirmaur, between February 2004 and August 2004, for which admittedly no amount was deposited in the RD account, but same was deducted from the pay of the complainant. 13. During investigation, Police found that a sum of ₹13,000/- was not deposited between April 2002 to April 2003, and a sum of ₹7,000/- was not deposited with effect from January 2004 to July 2004. Co-accused Ravinder Kumar was responsible for depositing amount between April 2002 to April 2003, whereafter accused Sunil Kumar took charge of the post of Assistant Cashier, and he also failed to deposit a sum of ₹1,000/- with effect from February 2004 till August 2004. Most importantly, both the aforesaid persons, after their being pointed out by the Police, handed over ₹23,000/- to Police, claiming that though amount of ₹1,000/- per month was being deducted as per instructions of the complainant, but same was being kept in the safe custody. Interestingly, sum of ₹20,000/- was not deposited, as has been pointed out hereinabove, but accused deposited ₹23,000/- on the pretext that ₹3,000/- is towards interest, meaning thereby that they were fully aware that on account of their not having deposited the amount, complainant has suffered loss on account of non-accrual of interest. 2026:HHC:29451 - 9 - 14. If the statement made by complainant (PW-2) is read in its entirety, it clearly proves the case of the prosecution. Cross-examination conducted upon the afore witness nowhere suggest that accused was able to extract anything contrary to what he stated in his examination-in-chief. Perusal of the passbook, Ex.PW-2/E, clearly reveals that money was not deposited for the month of April 2004 to August 2004, whereas details of pay rolls, Ex.P-6 to P-8, clearly reveals that a sum of ₹1,000/- was deducted from the salary of the complainant by the accused for its being deposited in his RD A/c No.570303. Since aforesaid deducted amount remained unaccounted for, no illegality can be said to have been committed by both the Courts below while holding petitioner-accused guilty of his having committed offence punishable under Section 409 IPC. 15. Though Mr. Vinod Thakur, learned counsel representing the petitioner, attempted to argue that a sum of ₹20,000/- was kept in safe custody and there was no misappropriation, but this Court is not impressed with aforesaid submission for the reason that no instruction was ever given by the complainant to keep the amount in safe custody, rather that was to be deposited in the RD every month, which actually in the case at hand was done for some time, but for certain intervals, afore amount was not deposited. Sum of ₹20,000/-, which is claimed to be kept in safe custody, was actually deposited by the accused after their being pointed out by the Police to save their skin. 2026:HHC:29451 - 10 - 16. Most importantly, petitioner-accused nowhere denied the factum of his being Cashier at the relevant time with the Department of Excise and Taxation. It is also not denied by him that money was not being deducted by him from the salary of the complainant. He also admitted that sum of ₹5,000/- was not deposited by him in the RD account of the complainant. However, he attempted to set up a case that he continued to keep the amount of ₹1,000/- per month deducted by him from the salary of the complainant in a safe condition. He attempted to set up a defence that even if the amount has not come to be deposited in the RD account of the complainant, yet it was continued to be kept in the chest of which the accused was in charge, and it never came to be converted by the accused for his personal use, no case much less under Section 409 IPC is made out. However, interestingly, no evidence qua aforesaid aspect of the matter ever came to be adduced by the defence to sustain the aforesaid plea. As has been observed hereinabove, despite sufficient opportunity, no evidence was led on record by the defence. 17. However also, once the amount was entrusted to the petitioner in his capacity as a Cashier with further direction to deposit the same in the RD, and accused failed to deposit the amount, rather he, without there being any instructions from the complainant, allegedly kept it in safe custody, a clear- cut case under Section 409 is made out against him. For the discussion made hereinabove, this Court is fully convinced that judgment of conviction and 2026:HHC:29451 - 11 - order of sentence recorded by both the Courts below are based upon proper appreciation of evidence, and there is no scope of interference. 18. Consequently, in view of the above, this Court is of the view that facts and circumstances of the present case do not warrant interference of this Court and as such the judgments passed by both the Courts below are upheld. Accordingly, the present criminal revision petitions are dismissed being devoid of any merit. 19. Faced with aforesaid, learned counsel for the accused submits that having regard to the fact that the alleged incident happened in the year 2006 i.e. twenty years back, coupled with the fact that now the accused has turned 46 years and during pendency of trial he has already undergone mental trauma on account of pendency of criminal cases against him, case of the petitioner may be considered for benefit of Probation of Offenders Act. 20. In support of the aforesaid arguments, learned counsel for the petitioner-accused also invited the attention of this Court to the judgment passed by this Court in Yudhbir Singh versus State of Himachal Pradesh 1998(1)S.L.J. 58, wherein it has been held as under: “9. The only mitigating circumstance that appears to be there is that the time gap of about six years between the date of occurrence as well as the date of decision of this revision petitioner. During this entire period sword of present case looming over the head of the petitioner was always there. That being so, this court is of the view that instead of sending the petitioner to jail as ordered by the courts below, he is given the benefit of Section 4 of the Probation of Offenders Act. Accordingly, it is ordered that he shall furnish personal bond in the sum of Rs. 5,000/- to the satisfaction of the trial Court 2026:HHC:29451 - 12 - within a period of four weeks from today to keep peace and to be of good behavior for a period of one year from the date of execution of the bond before the court below as well as not to commit any such offence. In addition to being given benefit of Section 4 of the Probation of Offenders Act, petitioner is further directed to pay a sum of Rs. 3,000/- each to PWs Baldev Singh and Dilbagh Singh injured as compensation. Shri R.K. Gautam submitted that this amount of compensation be deposited with the trial Court on or before 31.8.1997, who will thereafter pay the same to said persons.” 21. In this regard, reliance is placed upon judgment of the Hon’ble Apex Court in Ramesh Kumar @ Babla versus State of Punjab 2016 AIR (SC) 2858, wherein it has been held as under: “7. Accordingly the appeal is allowed in part by converting appellant’s conviction under Section 307 IPC to one under Section 324 IPC. On the question of sentence, it is pertinent to note that the occurrence took place in 1997. In his statement under Section 313 of the code of Criminal Procedure the appellant gave his age in 2002 as 36 years. He claimed that he and others went to the place of occurrence on getting information that his brother Sanjay Kumar was assaulted by Ramesh Kumar (Complainant). He brought his brother to Police Station and lodged a report. As noticed by trial court, parties are involved in civil as well as criminal litigation from before. High Court has noted that appellant, as per custody certificate, is not involved in any other case. In such circumstances, it is not deemed necessary to send the appellant immediately to Jail custody after about 19 years of the occurrence when he appears to be 50 years of age and fully settled in life. 8. In view of aforesaid, in our view the ends of justice would be met by granting benefit of Probation of Offenders Act to the appellant. We order accordingly and direct that the appellant be released on executing appropriate bond before the trial court to appear and receive sentence of rigorous imprisonment for 1 (one) year when called upon to do so and in the meantime to keep the peace and be of good behaviour.” 2026:HHC:29451 - 13 - 22. Reliance is also placed upon judgment passed by Hon’ble Apex Court Hari Kishan & Anr versus Sukhbir Singh & Ors, 1988 AIR (SC) 2127, wherein it has been held as under: “8. The question next to be considered is whether the accused are entitled to the benefit of probation of good conduct? We gave our anxious consideration to the contentions urged by counsel. We are of opinion that the High Court has not committed any error in this regard also. Many offenders are not dangerous criminals but are weak characters or who have surrendered to temptation or provocation. In placing such type of offenders, on probation, the Court encourages their own sense of responsibility for their future and protect them from the stigma and possible contamination of prison. In this case, the High Court has observed that there was no previous history of enmity between the parties and the occurrence was an outcome of a sudden flare up. These are not showing to be incorrect. We have already said that the accused had no intention to commit murder of any person. Therefore, the extension of benefit of the beneficial legislation applicable to the first offenders cannot be said to be inappropriate. 9. This takes us to, the third questions which we have formulated earlier in this judgments. The High Court has directed each of the respondents to pay Rs.2500/- as compensation to Joginder. The High Court has not referred to any provision of law in support of the order of compensation. But that can be traced to section 357 Criminal Procedure Code Section 357, leaving aside the unnecessary, provides:- “357. Order to pay compensation: (1) When a court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; 2026:HHC:29451 - 14 - (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable by such person in a civil Court; Xxxxxxxxxxxxxx Xxxxxxxxxxx Xxxxxx (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation. Such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this Section. 11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The 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. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The Court may enforce the order by imposing sentence in default.” 23. In view of the aforesaid law as well as submissions having been made by learned counsel appearing on behalf of the accused and after taking into consideration the facts and circumstances of the present case, I am of the considered opinion that the present petitioner-accused can be granted 2026:HHC:29451 - 15 - benefit of Section 4 of the Probation of Offenders Act, 1958, subject to payment of adequate compensation to the complainant. 24. Accordingly, Registry is directed to call for the report of the concerned Probation Officer on or before 03.08.2026. Registry to list this matter on 03.08.2026. (Sandeep Sharma), Judge July 18, 2026 (Rajeev Raturi)