IMPORTANT POINT
The prosecution must establish misappropriation, but once entrustment is proven, the burden shifts to the accused to explain the handling of the property.

JUDGMENT :

The appellant was the accused in C.C.No.29 of 2008 on the files of the Court of Enquiry Commissioner and Special Judge, Kottayam. The Special Court as per the judgment dated 26.09.2009 convicted him for the offences punishable under Section 13(1)(c) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act), and Sections 409 and 477A of the Indian Penal Code, 1860 ( IPC ). He was sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- with a default sentence of six months' imprisonment under Section 13(1)(c) read with Section 13(2) of the PC Act. He was further sentenced to undergo simple imprisonment for two years under Section 409 and one year under Section 477A of the IPC . During the pendency of the appeal, the appellant expired. His wife came on record as an additional appellant.

2. Heard the learned counsel for the appellant and the learned Special Public Prosecutor (Vigilance).

3. The prosecution was initiated with the following allegations:

The appellant was the Manager-in-charge of Maveli Store, Komalapuram from 24.05.2000 to 15.12.2000. He, being a public servant, in that capacity abused his official position and dishonestly misappropriated an amount of Rs.3,364/- from the sale value of the commodities. There occurred a shortage of commodities worth Rs.62,079/- and the said amount was also misappropriated by him.

4. Based on the said allegations, a charge was framed against the appellant. He pleaded not guilty. In order to prove the charge, the prosecution has examined PWs.1 to 10 and proved Exts.P1 to P39. When the appellant was examined under Section 313(1)(b) of the Code, he maintained that he was innocent. He submitted a written statement, wherein he maintained that he was not formally put in charge of the Manager. He was a helper and when the Manager went on leave, he was orally asked to take care of the affairs of the Maveli Store. He studied only upto Std.VI and he was incapable of maintaining accounts. Before handing over charge of the Maveli Store to him, no physical verification of the stock was done. The report was prepared by PW1 not after conducting a proper verification of stocks and not in his presence. His signature was obtained in the report subsequently. From Ext.P13 sales collection register, no deficit in remittance of the sale prices could be gathered. The misappropriation alleged by the prosecution is not based on any materials, but on a guess work. Accordingly, the appellant contended that he was innocent. No defence evidence was adduced.

5. The trial court, after considering the evidence on record, found the appellant guilty and sentenced as mentioned above. It was held that although there was no formal order appointing the appellant as the Manager, there is enough evidence to show that he was in charge of the Manager from 24.05.2000 to 15.12.2000. The accounts were maintained by him. The learned Special Judge found that a physical verification was done from 24.05.2000 to 26.05.2000 and another verification was done on 25.11.2000 and 27.11.2000. On the basis of the said physical verifications, PW1 found shortage of commodities in the stock, which was reported as per Ext.P2. It was also found that Ext.P13 sales collection register did not reflect the whole details regarding sale of commodities and from the facts revealed in the inspection, non-remittance of an amount of Rs.3,364/- by the appellant was established. The said amount was said to have been misappropriated by the appellant.

6. The learned counsel for the appellant would submit that the appellant informed the authorities his inability to manage the shop and requested to appoint a manager as early as on 7.3.2000. Copy of such a letter is contained in Ext.P1 file and in the light of that, the appellant could not be fastened with any liability. It is further submitted that unless the stock was physically verified, no shortage of commodities could be found. At the time of e