STATE OF KARNATAKA Vs. MAZHAR ALIM

JUDGEMENT

(1.) WE have heard the learned Addl. SPP on merits since the office objections have been complied with. The short submission canvassed by him on the point of law is that the accused was a public servant that he has admitted having taken away a sum of Rs. 10,500/- from the Post-Office and even though the amount has subsequently been made good by him, the learned counsel pointed to the Court that it is clearly a case of temporary misappropriation. His submission is that in a large number of cases, accused persons help themselves to public funds of which they were the custodians and when the shortage is detected they make good the amount and thereafter advance the plea that action should not be taken against them. There is a lot of substance in the submission canvassed by the learned counsel because what he points out is that in cases involving dishonesty such as misappropriation, breach of trust or even theft, that if the Court were to hold that because the property has been returned or restored, that the offence is purged then it would be an encouragement to commit such acts of dishonesty in the hope that for the period of time though which the offence is undetected the money can be used and that, if the offence is not detected at all that the accused will get away with it. We do see the logic and significance behind the argument which is faultless as far as the legal aspect is concerned. The learned counsel did submit to us that in appropriate cases if the Court is satisfied that the accused had made good the loss that at the very highest, this may be a ground for leniency but that it can never be a ground for a Court to condone the entire act and hold that the offence has not been committed. We need to record here that the law makes a very clear provision for offences of temporary misappropriation and breach of trust and similarly, in cases where property has been removed fraudulently and dishonestly and theft or robbery has taken place it is necessary to very clearly lay down that the law envisages that the offence is complete when the ingredients of the Section are satisfied. To this extent, the learned Addl. SPP is right in his submission even to the extent that he pointed out that this Court must lay down a clear guideline that there can be no condonation of completed offences.

(2.) THE short question is as to whether this principle will hold good for the present case. The trial Court has taken into account the important aspect of mens rea and more importantly, the ingredient of dishonesty that is required to accompany the commission of the offence. On the basis of the material before the Court, the trial Court has upheld the defence of the accused who states that the amount of Rs. 10,500/- was not taken away by him but, that it was being taken to the Head Post-Office for deposit and that the bag was lost in the lorry while in transit. On the strength of the material before the Court, the trial Court held that the conduct of the accused cannot be said to constitute the commission of an offence because there was enough evidence on record to satisfy the Court that the defence taken was plausible and the Court has taken note of the fact that at the earliest point of time the accused admitted the liability and has also made good the amount to the Post-Office. On a combination of these factors, the Court has held that this is a case where the offence cannot be said to have been completed and in our considered view the facts of this case really constitute an exception to the general rule. Moreover in an appeal against acquittal where the view taken by the trial Court is a possible and plausible and even a legally correct finding, no case is made out for interference.

(3.) THE appeal accordingly fails on merits and stands dismissed. Appeal dismissed.