A federal prosecutor here took the unusual position yesterday afternoon of urging that a white-collar criminal be kept out of jail because the judge in the case had refused the government's request to imprison another defendant in the same type of fraud scheme yesterday morning.

The situation arose in the sentencing of two defendants accused in two separate but identical schemes to defraud the West German Embassy by overcharging on freight shipments between the U.S. and Germany.

The governement contended in court that the person who was sentenced first yesterday by U.S. District Judge John H. Pratt was the more culpable, had not cooperated fully with the investigation into the schemes and had stolen more money from the German government.

Assistant U.S. Attorney Raymond Banoun of the fraud division urged that that man, Bodo Dolch, 36, of Arlington, be sentenced to a "substantial" period of incarceration for the $78,000 fraud with which he was charged.

Pratt refused the request in the Dolch case after Dolch's attorney, Joseph SitnicK, had argued that his client was bankrupt and had criticized the German government of filing criminal instead of civil charges against him.

Pratt placed Dolch on three years' probation and ordered that the provide 200 hours of volunteer service to the community over the next year. He did not order that Dolch repay the German government, after Sitnick said that an attempt by Dolch to arrange to make $50,000 in restitution over a 20-year period fell through.

Prosecutors in the fraud division reportedly were incensed over the sentence, and decided that it would be unfair to the other defendant if they left the impression that he should be given any jail time. The general policy in the U.S. Attorney's Office here is to refuse tomake any recommendation whatever in cases in which jail time is not requested.

Therefore, Banoun argued in favor of Peter Kirn, 36, of Falls Chruch, when Kirn's case was called for sentencing yesterday afternoon before Judge Pratt.

Krin, as did Dolch, owned a moving firm that did business with the German government. He worked with Dolch before forming his own company and said in court papers that he was aware of Dolch's overcharging scheme when he worked there and then employed it in his own company.

Banoun said Kirn had cooperated fully with the investigation, was less culpable than Dolch because his $40,000 fraud scheme operated for a shorter period of time, and had already paid $20,000 to the German government in partial restitution. Despite those attributes, Banon said, the government has still planned to ask that Kirn be sentenced to jail for "some" period of time.

However, Banoun added, the government had changed its mind in view of the earlier sentence by Judge Pratt in the Dolch case earlier in the day.

"Fundamental fairness in this case requires" that Kirn be sentenced to probation and not to be forced even to provide volunteer community service, Banoun said.

Pratt then sentenced Kirn to three years' probation, but ordered as well that he provide 200 hours of community work. He also ordered that, as a condition of his probation. Kirn complete his restitution to the German government - probably $10,000 more in payments.