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Criminal Misappropriation And Criminal Breach of Trust
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Wednesday, 17 November 2010 14:29

Criminal Misappropriation And Criminal Breach of Trust IPC

Criminal Misappropriation And Criminal Breach of Trust


Authored by :

Arunima
LLB 3rd year,
Kerala Law Academy Law College ,
Trivandrum, Kerala.

 

Introduction


The offences against property may be classified as theft, extortion, robbery and dacoity ; criminal misappropriation, criminal breach of trust, recieveing stolen property, cheating, fraudulent deeds ads dispositions of property, mischief and criminal trespass.

Section 403 of the Code defines criminal misappropriation of property and prescribes punishment for it.

Section 405 of the Code defines criminal breach of trust and its punishment is laid down in section 406.
We can study criminal breach of trust and criminal misappropriation through this assignment very widely.


CRIMINAL MISAPPROPRIATION
AND CRIMINAL BREACH OF TRUST


CRIMINAL MISAPPROPRIATION :

Section 403 of the Indian Penal Code deals with criminal misappropriation of property. Section 403 says that, whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Criminal misappropriation means dishonest misappropriation or conversion of movable property which is already in the possession of the offender. In the case of criminal misappropriation the offender gets the possession of the movable property innocently but subsequently uses the property dishonestly for his own benefit.
eg: A takes property belonging to Z out of Z's possession in good faith, believing, at the time when he takes it, that property belongs to himself. A is not guilty of theft ; but if A, after discovering his mistake, dishonestly appropriates the property to his own use he is guilty of an offence under this section.

Criminal misappropriation takes place when the possession has been innocently come by, but where, by a subsequent change of intention, or from the knowledge of some new fact with which the party was not previously acquainted, the retaining becomes wrongful and fraudulent[1].

Misappropriation is the wrongful setting apart or assigning of a sum of money to a purpose or use to which it should not be lawfully assigned or set apart[2].
To constitute criminal misappropriation, the property must have come into the possession of the accused innocently in the first instance[3].
The chief element for a conviction under section 403 is the dishonest misappropriation or conversion to one's own use. In the absence of any overt act on the part of the accused no dishonest motive can be imputed to him simply because he has detained certain documents in his custody[4].

Dishonestly misappropriates or converts to his own use
There are two things necessary before an offence under section 403, IPC can be established. Firstly that the property must be misappropriated or converted to the use of the accused, and secondly, that he must misappropriate or covert it dishonestly.

Essential Ingredient of Criminal misappropriation
i) The property must be a movable one.
ii) There should be a dishonest misappropriation or conversion of a property for a person's own use.

Temple property
The property of an idol or a temple must be used for the purpose of that idol or temple; any other use would be a malversation of that property, and if dishonest, would amount to criminal misappropriation[5].

Retention of money paid by mistake

Where a money is paid by mistake to a person, and such person, either at the time of receipt or at anytime subsequently, discovers the mistake, and determines to appropriate the money, that person is guilty of criminal misappropriation[6].

The offence of criminal misappropriation is non cognizable, bailable and compoundable with the permission of the court.

Section 404 deals with dishonest misappropriation of property possessed by deceased person at the time of his death.

Section 404 says that, whoever dishonestly misappropriates or converts to his own use property, knowing that such property was in the possession of a deceased person at the time of that person's death and has not since been in the possession of any person legally entitled to such possession, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine and if the offender at the time of such person's decease was employed by him as a clerk or servant, the imprisonment may extend to seven years.

This section relates to a description of property needing protection. The essential ingredient of offence under section 404, was the knowledge on the part of the accused that the property in question as in possession of the deceased person at the time of that person's death and had not since been in the possession of any person legally entitled to such possession.


OF CRIMINAL BREACH OF TRUST :


Section 405 of the Code defines Criminal Breach of Trust. Under section 405, whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriated or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or any legal contract, express or implied, which he has made touching the discharge of such trust or willfully suffers any other person so to do, commits 'criminal breach of trust'.
eg: A, being executer to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriated them to his own use. A has committed criminal breach of trust.

A person is liable to e punished for criminal breach of trust if the following conditions are satisfied:
i) He should have been entrusted with property or with any dominion over property.
ii) He should have dishonestly misappropriated or converted the property so entrusted to his own use; or
iii) He should have used or disposed of that property in violation of any direction of law prescribing the mode in which trust was to be discharged or of any legal contract

Section 406 defines punishment ie. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both.

In Shiv Sagar Tiwari Case[7], the Supreme Court held that a Minister is in the position of a trustee in respect of public property under his charge and discretion and hence he must deal with people's property in just and fair manner, failing which he or she should be personally liable for criminal breach of trust.

In Karanavir Case[8] , Supreme Court ruled that once entrustment of money is proves, prosecution need not prove misappropriation and it is for the accused to prove hoe the property entrusted to him was dealt with.

In the recent case of Dalip Kaur v. Jagnar Singh[9] , the supreme court reiterated that ,
"405 - Criminal breach of trust. Whoever, being in any manner entrusted with property,
@page-SC3193
or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".


Conclusion

Criminal misappropriation and Criminal breach of trust are the offence against property. Section 403 of the Indian Penal Code defines Criminal misappropriation and prescribes punishment. Section 405 of the Code deals with Criminal breach of trust and the section 406 deals with its punishment.
In the case of Criminal misappropriation the property must be moveable and there should be a dishonest intention. In criminal breach of trust, the property is lawfully acquired with the consent of the owner but dishonestly misappropriated by the person to whom it is entrusted.


Citations and Bibliography

[1]Bhagiram Dome v. Abar Dome (1965) Cr LJ 562.

[2]Rex v. Krishnan, AIR 1940 Mad 329.

[3]W.F. Gardner v. U. Khan, AIR 1936 Rang 471.

[4]Ram Bais Rai v. Emperor, AIR 1918 pat 489.

[5]Gadgayya v. Guru Siddeshvar, (1897) Unrep Cr C 919.

[6]Sham Soondur v. (1870) 2 NWP 475.

[7]Shiv Sagar Tiwari v. Uniuon of India (1996) SCC 599.

[8]Karanavir v. State of H.P. AIR 2006 SC 2211.

[9]Dalip Kaur v. Jagnar Singh AIR 2009 SC 3191.

[10]Ratan Lal and Dheeraj Lal, Law of Crimes, 1997, Wadhawa and Co.

 

Last Updated on Wednesday, 17 November 2010 14:51
 

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