JUDGMENT
S.N. Pathak, J.
1. This revision is directed against the judgment dated 27.7.2001, passed by the 5th Additional Sessions Judge, Aurangabad, in Cr. Appeal No. 32 of 1999/74 of 2000, whereby the appellate Court upheld the order of conviction accorded by the .trial Court in its judgment dated 6.5.1999 in G.R. Case No. 564 of 1990/Tr.No.16 of 1999.
2. it has been submitted by the revisionist lawyer that he was entrusted with the work of sinking 75 tube well at different sites. However, he failed to sink five tubewells at the designated site because of some disturbance from the extremist out fits and so, six pipes were kept in the premises of Anand Hotel, Aurangabad, on a rental of Rs. 10/- perday, to be paid to the Management of the Hotel. Thus, the custody of the pipes was entrusted to the Anand Hotel with oral permission of the Junior Engineer so according to the revisionist lawyer, there was no misappropriation of the pipes and accordingly no offence under Section 409 is made out.
3. However, admittedly the revisionist was entrusted with the work of sinking 75 tubewells. The prosecution alleged that the pipes relating to the sinking of five tubewells were stated in the premises of the Anand Hotel in collusion with the Junior engineer in order to misappropriate the same. A raid was conducted under the orders of the District Magistrate and the concerned pipes were seized from the premises of Anand Hotel. P.W. 1 was examined and he stated that he had got those pipes on the basis of the written Kirayanama. He claims to produce that Kirayanama, but no Kirayanama was produced. P.W. 1 was examined with respect to the, Zirnmanama obtained by the police after seizing the concerned materials and entrusted it to the Manager of the Hotel, so there is confusion whether he had accepted the custody of the concerned pipes on a rental from the administration or from the accused. So the evidence of P.W. 1 cannot unnecessarily be interpreted to mean that he had taken those pipes on any agreement on the rental from the accused. If there was such an agreement between the accused and the Hotel Manager, I do not think this agreement would be legal and it would exonerate the accused revisionist. Under the admitted agreement, the revisionist contractor had to keep the concerned pipes at a place not other than the site. Admittedly, he did not obtain written agreement firm the P.H.E.D., department for keeping the pipes not at the site, but at the place other than the site. So nothing more than fraudulent or dishonest intention, can be gathered from the aforesaid act of keeping the concerned pipes in the premises of the Anand Hotel, So the intention of misappropriation of the concerned pipes was obvious and apparent.
4. I am, therefore, of the opinion that the order of conviction recorded by the two Courts below is well merited by the evidence on record. There is no question for interference with the order of conviction recorded by the Courts below.
5. So far the sentence is concerned, it is submitted by the revisionist lawyer that the revisionist had already suffered incarceration for eleven days and so the period undergone or a sentence of fine shall met the ends of justice.
6. I think that the sentence of fine of Rs. 10,000/- by each accused shall meet the ends of justice. The order of sentence, is, accordingly, set aside and the revisionists are awarded with a sentence of fine of Rs. 10,000/- and in default to undergo S.I. for four months. The fine shall be paid by the revisionist within three months from today, failing which the revisionists shall be liable to suffer imprisonment in default of payment of fine.