STATE OF KARNATAKA Vs. SYED MEHABOOB

JUDGEMENT

(1.) WE have heard the learned State Public Prosecutor on merits because after taking us through the facts and figures, his submission was that the acquittal order in this case is unjustified because it can clearly be demonstrated from the dates and figures that the offence of misappropriation has been made out atleast in respect of two amounts of Rs. 1000/- and Rs. 754-30 Ps. The submission was that even assuming there is some reference to amounts being due to the accused by the society that it is an entirely different head of liability and cannot justify the accused who was the Secretary dipping into the society's funds.

(2.) WE need to record here that this case, like many others, is one in which have is accounting shortage that has been alleged. If the accused was incharge of the society affairs and if on an examination of the audit report and/or records some shortage is discovered, it could in an appropriate case create civil liability insofar as the accused would have to account for the amount or make good the shortage. The fact that the accused agreed to deposit some amount with the society at a later point of time has been relied upon by the learned State Public Prosecutor as virtually an admission of his guilt. We are not prepared to accept this because invariably when a person is asked to make good the shortage irrespective of whether the plaintiff is admitted or not the person has no option except to pay it. We are concerned with the strict position in law wherein the ingredients of the offence of criminal breach of trust would require, among other things, specific physical entrustment, secondly diversion of the funds for one's own use or to some other use for which they are not be marked, thirdly animus of guilt, the intention of which would bring the fact within the ambit of a criminal offence and takes it out of a civil liability. Merely because there is some discrepancy in the amount and that too of a small amount, would not be sufficient to sustain a conviction unless these ingredients are established. This being the position, depsite the legal submission advanced by the learned State Public Prosecutor, we do not see how a conviction is possible on this record.

(3.) CONSEQUENTLY the appeal fails on merits and stands dismissed. Appeal dismissed.