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. 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 entrusting the Maveli Store with the appellant, no physical verification was conducted. PW1 did not venture to verify physically the stock during his inspection on 25.11.2000 and 27.11.2000. In such circumstances, the evidence of PW1 or his report could not be used to find that there was short remittance or shortage in the stock. 7. At the time of entrusting the Maveli Store with the appellant, no physical verification was conducted. PW1 did not venture to verify physically the stock during his inspection on 25.11.2000 and 27.11.2000. In such circumstances, the evidence of PW1 or his report could not be used to find that there was short remittance or shortage in the stock. 7. The learned Special Public Prosecutor, on the other hand, would submit that the short remittance and excess shortage in the commodities are borne by records, and when PW1 reported such deficiencies after physical verification, it cannot be said that the evidence is insufficient. Having managed the shop for months together and had service as a Helper for so many years, the appellant could not feign ignorance about the affairs of the shop. He was capable enough to manage the shop and the low educational qualification is not an excuse. The learned Public Prosecutor would thus maintain that there is no reason to interfere with the conviction and the sentence. 8. PW1 deposed in detail about the inspection he had conducted on 25.11.2000 and 27.11.2000. Ext.P1 is the file which contains the details regarding the inspection. As per Ext.P1(a), PW1 was deputed by the Regional Manager for the inspection. PW1 had prepared a worksheet concerning the inspection and verification, which are contained in page Nos.81 to 137 of Ext.P1 file. On the basis of such verification, PW1 prepared trading particulars, which is Ext.P2. In the computation in Ext.P2, there occurred a mistake and the corrected statement is Ext.P3. PW1 arrived at the conclusion that there was a deficit of Rs.3,364/- in the remittance of the sale proceeds and excess shortage of commodities worth Rs.62,079/-. 9. PW6, who was the successor Manager of the Maveli Store, Komalapuram also gave evidence concerning the irregularities and deficiencies in the matter of sales in the Maveli Store. Both of them deposed that a daily report of the sale had to be maintained. Collection on each day has to be remitted in the Central Bank of India, and the challan should be kept. Ext.P12 series are the challans for the period from 24.05.2000 to 15.12.2000. On a comparison of those documents, one can easily ascertain short remittance, if any. The details of the said data have been stated in the tabulation sheet contained in Ext.P2. Ext.P12 series are the challans for the period from 24.05.2000 to 15.12.2000. On a comparison of those documents, one can easily ascertain short remittance, if any. The details of the said data have been stated in the tabulation sheet contained in Ext.P2. From the said facts and materials, the deficit in remittance in the bank of Rs.3,364/- was found. 10. The learned counsel for the appellant would point out that a sales collection register was maintained in the Maveli Store, which is Ext.P13, and there is no such difference in Ext.P13. It is contended that in the light of Ext. P13 the allegation regarding short remittance cannot be said to be correct. The daily report regarding sales was prepared based on the billing machine report and the cash bills. Both cash bills as well as machine billing were seen used. So there is tangible evidence regarding the sales and the amounts received. When there is difference between the daily report prepared on the basis of those bills and the amounts reflected from the challans, the difference is easily discernible. PW1 found the deficit in such a way and reported as per Exts.P2 and P3. It cannot therefore be said that the said finding concerning short remittance of Rs. 3364/- is incorrect. 11. PW1 deposed that there were stock registers in the Maveli Store during the year 2000, which were Exts P6 to P11. His definite version is that the data required to prepare Ext. P2 were collected from those registers. He did not state that he did physical verification of the stock for finding out the excess shortage. The prevailing orders allow shortage in the stock within the permissible limit. If there is any excess shortage, the person concerned is answerable. Both PW1 and PW6 deposed about the excess shortage based on the verification done on 25.11 2000 and 27.11.2000. The question is whether the quantification of excess shortage in that manner without a physical verification is enough to convict the appellant on the ground of deficit in the stock treating that as misappropriation. 12. PW6 joined as Manager of the Komalapuram Maveli Store on 21.11.2000. But she took charge only on 16. 12.2000 and in between the inspection by PW1 was held. 12. PW6 joined as Manager of the Komalapuram Maveli Store on 21.11.2000. But she took charge only on 16. 12.2000 and in between the inspection by PW1 was held. Although it was attempted to show that the shortage in the stock could have happened after PW6 took charge as the Manager, the same is not supported by any evidence. When PW1 deposed that he had conducted a physical verification on 25.11.2000 and 27.11.2000, and the same is supported by the documents, there can be no doubt that Ext.P2 trading particulars were prepared after due verification of the stock as on the dates of his inspection. 13. The learned counsel for the appellant, after referring to the provisions in Ext.P16, which is the Maveli Manual, submitted that being a helper, the appellant did not have any duty or obligation to maintain the cash book, sales collection register, etc. When a person having VI Standard education was put in charge of the shop, that too, without any formal entrustment, no prosecution for such a flimsy reason can be launched against him. Yet another contention raised is that periodical inspection, which is insisted by the provisions in Ext.P16, were not conducted during the period of the appellant and for that reason also the liability for the excess shortage cannot be fastened with the appellant. It might be that the pilferage occurred over a long period and no dishonest intention for misappropriation can be attributed on account of the shortage of commodities, it is submitted. 14. Clause (17) in Ext.P16 defines duties of Shop Manager, Helper, etc. When the appellant was put in charge of the Manager of the Maveli Store and he functioned as such for long, he cannot now raise a contention that there was no entrustment. His letter dated 07.03.2000 is available in Ext.P1 file. PW9 during cross-examination had admitted that fact. The Special Court did not accept it as a letter issued on 07.03.2000. The view taken is that the same might have been sent on a subsequent stage after detecting the irregularity. Such an inference may be out of place. However, even on taking that such a letter was submitted by the appellant as early as on 07.03.2000 itself, that also did not absolve him from the liability, if there was shortage of articles and a dishonest intention in his part is proved. 15. As stated, PW1 prepared Ext. Such an inference may be out of place. However, even on taking that such a letter was submitted by the appellant as early as on 07.03.2000 itself, that also did not absolve him from the liability, if there was shortage of articles and a dishonest intention in his part is proved. 15. As stated, PW1 prepared Ext. P2 taking the initial stock as reflected from Exts. P6 to P11 stock registers. It is not known whether stick as on the date in which the appellant was put in charge of the manager was entered after a physical verification. No witness has asserted that such a stock verification was done. None of the witnesses including PWs1 and 6 are able to state that fact from their personal knowledge also. If so, the findings in Ext. P2 that there was excess shortage of articles costing Rs. 62979/- cannot be said to be based on correct data. It is not able to exclude the possibility of a shortage at the time when the appellant was put in charge itself. The evidence is insufficient to exclude such a possibility. In that context the low educational qualification of the appellant also assumes importance. Possibility for shortage at the beginning and pilferage without the appellant having any dishonest involvement are also the possibilities and the evidence tendered by the prosecution is insufficient to exclude such possibilities. Benefit of that doubt shall be given to the appellant. 16. The Apex Court in N.Bhargavan Pillai (Dead) by LRs. v. State of Kerala [ (2004) 13 SCC 217 ] held that once entrustment is proved, it is for the accused to explain how the property entrusted has been dealt with. Actual mode of entrustment or misappropriation need not necessarily be proved by the prosecution. Therefore, the appellant is obliged to explain that the stock entrusted with him was duly appropriated. 17. In the matter of short remittance of Rs. 3364/- the evidence is cogent. The appellant does have an obligation to explain about that short remittance. When the finding in Exts.P2 and P3 in that aspect is based on sufficient data which are reliable, the conclusion of the Special Court concerning that fact cannot be interfered with. 17. In the matter of short remittance of Rs. 3364/- the evidence is cogent. The appellant does have an obligation to explain about that short remittance. When the finding in Exts.P2 and P3 in that aspect is based on sufficient data which are reliable, the conclusion of the Special Court concerning that fact cannot be interfered with. Therefore, the conviction of the appellant for the offences under Section 13(1)(c) read with Section 13(2) of the PC Act and Sections 409 and 477A of the IPC on account of the dishonest misappropriation of Rs.3,364/- from the sale value of the commodities is liable to be confirmed. Whereas, he is entitled to the benefit of doubt as regards the excess shortage of stocks and on that ground he is not liable for a conviction. 18. The appellant/accused is no more. Therefore, what is relevant is only the fine part of the sentence. The Special Court imposed a fine of Rs.1,00,000/- for the offence punishable under Section 13(2) of the PC Act. Considering the nature of the offence stands proved and the amount misappropriated, the amount of fine is liable to be reduced. Hence, the fine is reduced to Rs. 10,000/-. 19. During the course of arguments, the learned counsel for the appellant pointed out that the death-cum- retirement gratuity of the appellant has not been released yet owing to the pendency of this appeal. When the fine to be realised is only Rs.10,000/-, there is no justification for retaining the rest of the gratuity. So, if the amount of fine is paid, the authority concerned is bound to release the gratuity and if not, the amount of gratuity in excess of the fine amount shall be released, without any delay. The appeal is allowed in part to the above extent.