JUDGMENT
1. We have heard the learned Government Pleader on merits. His first submission is that the entrustment in respect of which the offence has taken place relates to an amount of Rs. 19,005/- which is the amount collected by the sale of the tickets and this has nothing to do with the original tickets entrusted by the Corporation to the conductor. The Trial Court has wrongly proceeded on the footing that due to some procedural errors, the entrustment of the tickets has not been established. Learned Government Pleader is right when he points out that the offence alleged is in respect of the sale proceeds and not damages.
2. The next submission canvassed by him is that where the rules required that the amount in question had to be deposited with the Corporation when the bus had returned after its journey to Bombay and if the same is not deposited, that it constitutes misappropriation of the amount is also technically correct. His submission is that even though the accused had deposited the full amount with the Corporation through his relatives after 11 days, that the retention during the intervening period constitutes an offence because, the accused is deemed in law to have converted to his own use the money that belonged to the Corporation. The argument therefore is that even if the Court has taken a lenient view on the ground that it is a technical offence, that the Trial Court, was wrong in having acquitted the accused because the facts clearly established the commission of the offence.
3. We have carefully looked at the record of this case and re-evaluated the evidence in the light of the legal position. Misappropriation of money or property can be temporary and it can be permanent and the learned Government Pleader is justified in his submission that, even if funds are wrongfully retained, it amounts conversion to ones own use and that the ingredients of the section would spell out an offence. Under these circumstances, normally, we would have interfered with the order passed by the Trial Court. There is only one reason why we are not doing this and it is because the case has been carelessly conducted before the Trial Court for which the Corporation is really responsible. The record very clearly suggests that the accused was not available from the 2nd upto the 13th and even on the 13th, he had sent the amount through his relations. This is a point in his favour insofar as if the accused had misappropriated the amount, it is unlikely that he would have replaced it but, we are prepared to consider the submission of the learned Government Pleader that having committed the offence and perhaps realising the consequences, he could have tried to undo the damage by replacing the amount. The real point is that the record suggests that the accused was not on duty during this period of time and the prosecution ought to have established that his absence was not for a valid reason, that it was guilty conduct and secondly, that during this period of time, the retention of the amount was wrongful within the eye of the law. This is a grey area and gaping void in the prosecution case because, if the accused was not on duty, there is every possibility that there was a valid reason for his absence. One of the simplest possibilities is that after the long journey to Bombay and back, if the accused was unwell and had not attended to his duties, the amount would have only remained with him. Unless the prosecution establishes the act of conversion which would mean that the amount was used by him, it would be difficult in these circumstances to hold that merely because it remained with him for a few days that he is guilty of a serious offence. It was the duty of the prosecution to have established this last ingredient viz., what was the reason for the absence of the accused and to have not left this as a grey area. The fact that the amount was sent back through the relatives indicates bona fide intention, it indicates an honest motive and thirdly, it is suggestive of the fact that the accused was not in a position to come himself and if this is the case, then the benefit of doubt would have to go to the accused. Since no loss has been caused to the Corporation and since it appears from the record that a departmental enquiry was held in which, if at all the accused was required to be warned or punished, the Corporation must have done it, we see no ground on which the order of the Trial Court should be interfered with.
The appeal fails on merits and stands dismissed.
As far as the delay aspect is concerned, for the reasons set out, I.A. No. I is allowed. Delay is condoned.