JUDGMENT
M.F. Saldanha, J.
1. The State of Karnataka, through this appeal has assailed the order of acquittal passed in favour of the respondent-accused by the learned J.M.F.C., Hungund in C.C. No. 1179 of 1988. Briefly stated, the accused Hanamappa Hugar who was working as the Secretary of the S.K. Budi-hal V.S.S.S. between the years 1976 and 1984 is alleged to have misappropriated three amounts of money during the period from 1-7-1983 to 31-3-1984. The three amounts in question are an amount of Rs. 2,400/-which was the salary amount payable to one P.B. Goudar who was another employee of the society, an amount of Rs. 72-50 which was detected to be short when the accounts were audited and an amount of Rs. 15,080-42 which amount was the cash balance which the accused had to handover on 31-3-1984 when he was relieved of his charge and which he failed to do. The accused was tried by the learned JMFC and the Court by judgment and order dated 23-11-1994 acquitted the ac-
cused holding that all the three heads of charge had not been established. It is against this order of acquittal that the present appeal has been filed.
2. We need to prefix this judgment by pointing out that offences of this type have become extremely common and that invariably, it takes some time before the formal complaint is lodged and the action according to law is taken and thereafter, the usual difficulties seem to come up with regard to production of the records, examination of witnesses etc., as a result of which after a considerable passage of time in the majority of instances the accused are acquitted virtually by default. We have therefore taken meticulous care to examine every one of the relevant records and to re-appreciate the evidence quite apart from the oral evidence in the case for purposes of ascertaining as to whether the order of acquittal is justified. The learned Additional State Public Prosecutor submitted that essentially this is a case of documents. He pointed out to us that the misappropriation was detected because an audit was commenced about two weeks prior to the date when the accused was relieved from his position because of the fact that the Auditor detected the offences in question. The prosecution has produced the relevant records of the society as far as the first head is concerned. The learned Additional State Public Prosecutor submitted that the witness P.B. Goudar has in terms stated that he has not received the two months’ salary that is shown to have been disbursed to him as per the pay book. The witness has been cross-examined and the learned Counsel points out to us that his evidence has remained unshaken. The prosecution case was that the accused drew this amount from the funds of the society which is established and furthermore that instead of paying the amount of Rs. 2,400/ to the said Goudar, that he has misappropriated the amount and made an entry in the records along with a stamped receipt containing the signature of the witness in order to make it appear as though the payment has been received by him. The witness has admitted that the signature appearing on the revenue stamp is his signature but the prosecution has been able to point out to the Court as per Exhibit P. 3(b) that the revenue stamp bearing the signature of this witness from Entry No. 47 is missing. It is the prosecution case that this missing stamp has been affixed in support of the contention that the amount in question was paid to the witness as his salary. Learned Counsel submits that this evidence conclusively establishes the charge as far as the amount of misappropriation of Rs. 2,400/- is concerned.
3. The learned Advocate Sri Savanur has pointed out to us one circumstance of some importance. We had sent for the original registers and we have perused the original documents Exhibit P. 3(b) and Exhibit P. 3(c). What the learned Counsel brings to our notice is that there are clear indications in green pencil on each of the pages and each of the entries which are obviously made by the Auditor which indicate that the entries in question were checked one by one. It is true that the stamp is missing from Exhibit P. 3(b) but what the learned Counsel brings to our attention is the fact that like all the other stamps on that page, the Auditor’s green pencil endorsement which is there both on the left and
the right of where the original stamp was, would necessarily indicate that the endorsements must have run across the stamp that was originally there. His further submission is that if the stamp along with signature was lifted from this page and re-used in Exhibit P. 3(b) as is the prosecution case, that the stamp would have had the green mark running across it and from the absence of this mark it is his submission that the entire allegation that the stamp has been transferred, remains unsubstantiated. There is some substance in this submission because if the stamp that appears in Exhibit P. 3(c) is not the one that has been removed from the earlier pages, then it would mean that the entry cannot be faulted and if this is the position, then the evidence of witness Goudar who states that this amount was not paid to him becomes doubtful. Having regard to this position, we would prefer to extend the benefit of doubt to the respondent-accused as far as this head of charge is concerned.
4. As far as the amount of Rs. 72-50 is concerned, there does appear to be some degree of accounting confusion with regard to this small amount which is why the learned Trial Judge has given the accused the benefit. Though the learned Additional State Public Prosecutor submitted that this is not a case of accounting confusion and irrespective of whether it is a small amount or a large amount, that the shortage in general having regard to the facts of the case would indicate that even this small amount was taken by the accused and that therefore, he is liable to be convicted under this head. We would prefer to extend the benefit of doubt to the accused as far as this head is concerned for a different reason namely that as far as the various accounting heads are concerned, there was some degree of ambiguity and dispute and therefore, the amount being relatively small we would prefer to ignore it.
5. However, as far as the third charge relating to the amount of Rs. 15.080-42 is concerned, the learned Additional State Public Prosecutor has pointed out to us that the relevant entries very clearly indicate that this was the cash balance, there is no dispute really from the side of the accused as far as this amount is concerned because we find Exhibit P. 9 which is in the handwriting of the accused. The oral evidence in this case indicates that this was the cash balance which the accused was required to handover to the person who took charge from him and that when he did not do so, he has given an immediate explanation to the effect that the amount had been used by him and furthermore that he will repay a sum of Rs. 11,500/- out of the amount and that he would repay the balance amount of Rs. 3,580-42 by the month of July. This written admission as per Exhibit P. 9 virtually concludes the case and proves conclusively the misappropriation of this amount by the accused. The fact that the accused refunded the amount within a short period of time would only lessen the gravity of the offence as far as the punishment is concerned but a Court cannot ignore the fact that apart from the records of the society and the oral evidence, that we have the written admission of the accused Exhibit P. 9 which indicates that the amount had been utilised by him.
6. As far as this head is concerned, the respondent’s learned Counsel submitted that the amount was restored to the society before action was taken against the accused and that therefore, at the very highest the charge would have to be reduced to an amount of Rs. 3,580-42. Even as far as this amount is concerned, the submission that was advanced was that there were various disputes with regard to how much of money had been recovered from the loanees of the society and that consequently, it is not correct to hold that the amount was in fact recovered by the society and taken away by the accused. Secondly, the learned Counsel submitted that merely because the Auditor found some shortage and action was taken against the accused, he was made to give a statement in writing admitting the shortage and that under the threat of action against him that he was made to make good the greater part of the amount and was given time to pay up the balance. The submission really is that the document Exhibit P. 9 ought not to be used to support the entries in Exhibit P. 8.
7. On a careful evaluation of the evidence relating to the third head of charge, we find that the records of the society do indicate that the amount had been recovered and if this is the position, the admission of the accused would clearly fasten the legal liability on him. The fact that he has repaid the greater part of the amount would also indicate that this amount was taken out and under these circumstances, the submission canvassed on his behalf cannot be accepted. The evidence clearly establishes the offence under Section 409 of the IPC only as far as this head of charge is concerned. In view of our finding, the order of acquittal recorded in favour of the accused by the Trial Court as far as the offence of breach of trust in respect of the amount of Rs. 15,080-42 is concerned is set aside. The accused is convicted of the offence punishable under Section 409 of the IPC.
8. On the question of sentence, we have taken into consideration several factors, the first being that the accused has made good an amount of Rs. 11.500/- to the society. The second factor is that as a result of this incident, the accused has lost his job. The third one being that the incident relates to the year 1983-84; fifteen years have now elapsed, the accused has been through a protracted trial and at this late stage, we do not consider it desirable to impose any further jail sentence. We have taken note of the fact that the accused has undergone a short period in custody but, since this is a case of misappropriation of money, in our considered view, a heavy fine would meet the ends of justice. We need to observe that in offences of this type where monetary gains are involved that it is appropriate that the Court must impose a fine whereby not only the whole of the amount that constitutes wrongful gain is restored by the accused but even more than that amount as and by way of punishment. In this case, the amount works out to Rs. 3,580-42 but having regard to the fact that the accused was working as a Secretary of the society, we are not prepared to take a lenient view as far as the imposition of fine is concerned because leniency shown in this regard would unfortunately act as encouragement in this class of of-
fences. Consequently, we convict the accused for the offence punishable under Section 409 of the IPC and direct that he shall undergo imprisonment for the period already undergone and that he shall pay a fine of Rs. 10,000/-. No in-default sentence is being awarded. The accused is afforded twelve weeks’ time to deposit the fine amount in the Trial Court failing which, the Trial Court to recover the same from the accused. After recovery of the amount, the Trial Court shall issue notice to the Secretary of the society and repay an amount of Rs. 5,000/- to the complainant-society, taking into account the loss of interest over the years. The balance amount shall be remitted to the State.
9. Before parting with this judgment, we need to emphasise one important aspect of the theory of sentencing that we have carved out in relation to offences of this category. Traditionally, a conviction under Section 409 of the IPC, would invariably attract a jail sentence of varying duration according to the amount involved; the inevitable result being that the accused spends a period of time in jail at the State expense, benefits by virtue of retention of the property and the complainant or the aggrieved institution is the worst affected having to write off the loss that has occurred. In our considered view, a Court must aim at off-setting these factors while in no uncertain terms conveying the message that “crime does not pay” by ensuring that there is no unjust enrichment occurring to the accused and that the party is made to part with much more than what has been taken away. In property offences and where misappropriation of money is involved, an accused would cheerfully sit in jail at State expense and then come out and benefit from the unjust enrichment and it is this aspect that the Courts need to take cognizance of. While it is unfair and unnecessary to burden the State by maintaining the accused in a jail for years together and increasing the number of unemployed thereafter; it appears far more rational to us that the three-fold objective would be achieved by imposing a fine on the accused of at least three times the amount involved in the offence and by not prescribing the in-default sentence because again, experience has shown that many accused would find it more profitabie to stay in jail for some time rather than pay up a heavy fine. Also, by following such a procedure the aggrieved party or the institution can be adequately compensated as has been done in the present case. Undoubtedly, this formula is a departure from the hitherto prevalent procedure but one which in our considered view is most essential in the present context.
10. The appeal succeeds to this extent and stands disposed of. The bail bond of the accused to stand cancelled.