ABSTRACT
The purpose of this paper is to mainly focus on the offence under the theft ,criminal misappropriation of property and criminal breach of trust and the major difference between them The offences like Criminal Misappropriation and Criminal Breach of Trust are criminal offenses against property as mentioned under the Indian Penal Code, 1860. Section 403 of the Indian Penal Code, 1860 defines Misappropriation of the property whereas Section 405 of the Indian Penal Code, 1860 defines Criminal Breach of Trust. Under Section 403 of the Indian Penal Code, when a person dishonestly misappropriated or uses the property of another person to satisfy his own purpose or to capitalize it for one’s own use, has committed the offense of criminal misappropriation. The essential ingredient of Section 405 of the Indian Penal Code, 1860 is trust and whoever breaches it, has committed the offense of Criminal Breach of Trust. And we have used different books , research papers and case laws as the references to complete our research paper .
KEYWORDS
Indian penal code ,1860 (act no. 45 of 1860)
OBJECTIVE
The objective of the Indian Penal Code is to lay out what is right and what is wrong and to lay down the punishment for committing such wrong. In criminal law, the “intention” of committing the crime plays a huge role in deciding the liability of the offense.
METHODOLOGY
For this research ,a mixed methodology which refers to the emergent methodology of research that advances the systematic integration, or “mixing,” of quantitative and qualitative data within a single investigation or sustained program of inquiry from that the comparative analysis between the theft ,criminal breach of trust and criminal misappropriation have been done.
LITERATURE REVIEW
[1]Historical introduction to the Indian penal code ,essays of indian penal code pdf.
[2] Rohit Dangare & Rohit Dangare, In Nutshell the aspects of Indian Penal Code, Criminal Procedure Code, and Indian Evidence Act: Part I Academia.edu, PDF (last visited May 11, 2019).
INTRODUCTION
The offence of Theft comes under the purview of offences against property which extends from section 378 to section 462. Theft has been dealt with under sections 378 to 382. Theft is an offence in which movable property of a person is taken away and it is taken away without his consent. Theft has been defined under Section 378 of IPC. Simultaneously the punishment for the commitment of an act of theft has also been defined under Section 379 of IPC.
Offences of Theft (Section 378-382)
Theft is defined under the Section 378 of The Indian Penal Code [1]as, any person intending to take any movable property without honesty, out of the possession of any person without that individual’s consent, moves that property in order to such taking is said to commit theft.
Essential Ingredients
(1)Dishonest intention to take property
It is initially for the prosecution to prove that the accused had acted dishonesty and where circumstances show that the property has been removed in the assertion of a bona fide claim or right, it is not theft
vithal singh v. state of Maharashtra (1982)[2]
In this case there was a person named Vithal and he went to the police station to file a case but the police refused to take his case as they were busy with their sleep so he took the handcuffs as a proof as he was going to inform the police superintendent but in his way he was caught .
but in this case court held that he wasn’t have dishonest intention to take the handcuffs as he was going to complain so it was said that there was no No wrongful gain
ram ekbal rai v. jaldhari pandey (1972)[3]
In this case party b claimed that the party a has wrongfully confined their cattle in the plot that doesn’t belong to them but here in this case court held that party a doesn’t have the dishonest intention as they genuinely thought that the plot belongs to them so court doesn’t hold them .
(2) The property must be movable:
A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; it becomes capable of being the subject of theft and is severed from the earth.
Illustration
A tree is considered as an immovable property but as soon as the tree gets cut down it becomes movable and it is done with a wrongful intention then it will be considered under theft here movable property can be signboard , streetlights etc.
(3) It should be taken out of possession of another person:
The property must be in the possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at large, but there is a theft of tamed animals
illustration
A finds a ring lying on the high road not in the possession of any person. A, by taking it commas no theft, though he may commit criminal misappropriation of property
(4 )There must be some removal of the properly in order to accomplish the taking of it:
A puts a bait for dogs, in his pocket, and induces Z’s dog to follow ill Here, if A’s intention is dishonestly to take the dog out of Z’s possession without Z’s consent, A has committed theft as soon as Z’s dog has begun to follow A.
Again A meets a bullock carrying a box of treasure. He drives the bullock in a certain direction in order that he may dishonestly take the treasure.
As soon as the bullock begins to move. A has committed theft of the treasure. Similarly, A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here, A, at the time of first moving the ring, commits theft.
Mistake of fact
OFFENCES AGAINST PROPERTY UNDER INDIAN PENAL CODE
Offences Against Person
- Against Human Body (Sec.299-377)
- Against Property (Sec. 378-462)
- Against Mind (Sec 295-298,Sec 493-498,Sec 503-510)
- Against Reputation(Sec 499-502)
Offences Against Property
- Offence dealing with deprivation/delivery of Property (Sec 378-424)
- Offence dealing with damage of Property (Sec 425-440)
- Offence in relation to violation of rights to Property (Sec 441-462)
Offence dealing with deprivation/delivery of Property (Sec 378-424)
- With Consent (Eg –Theft Sec 378-382)
- Without Consent (Eg – Extortion, Robbery, Dacoity, Criminal Misappropriation, Criminal Breach of Trust, Cheating )
Offences of Criminal Misappropriation of Property (Section 403-404)
Section 403 & Section 404 of the Indian penal code, 1860 deals with Criminal Misappropriation of Property. Section 403 of the Indian penal code deals with criminal misappropriation and prescribes the penalization for the offence. Also, Section 404 of the Indian penal code deals with dishonest misappropriation of a deceased person’s property.
Section – 403 of the Indian penal code reads that, whoever dishonestly misappropriates any movable property to his own usage, shall be punished with imprisonment up to 2 years or with fine or both.
Illustrations
- Amit takes property belonging to zoya out of Zoya’s possession, in good faith, believing, at any time when he takes it, that the property belongs to himself. Amit is not guilty of theft. But if Amit , after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
- Amit , being on friendly terms with Zoya , goes into Zoya ’s library in Zoya ’s absence, and takes away a book without Zoya’s express consent. Here, if Ajay was under the impression that he had Zoya’s implicit consent to take hold of the book for the aim of reading it, Amit has not committed theft. But, if Amit subsequently sells the book for his own profit, he is guilty of an offence under this section.
Essential[4]:
- Movable Property
- Misappropriation or conversion to one’s own use of such property;
- Doing it with dishonest intention;
Ramaswamy Nadar vs The State Of Madras on 11 October, 1957[5]
The appellant, who used to carry on the business of conducting prize competitions, was prosecuted on a charge under S. 420 of ipc . The case against him was that though he found that his competitions did not attract a sufficiently large number of competitors to yield the guaranteed prize money, he advertised the competition in question and collected a large amount by way of entry fees with a dishonest intention, and did not utilize any part of the collected amount towards payment of the prizes offered.
Punishment – Imprisonment upto 2 yr or fine or both (Sec 403);
Difference between Theft and Criminal Misappropriation of Property –
The offence of theft is defined under S. 378 of IPC and the offence of criminal misappropriation of property is defined under S. 403 of IPC.
In the case of theft, from its initial possession it is wrongful but in criminal misappropriation of property it is lawful and innocent but with subsequent change of intention it is converted into unlawful taking.
In the case of theft, there is invasion of possession of another person by wrongdoer without their consent but in criminal misappropriation the offender is already in possession and creates an offence when they unlawfully misappropriate it.
In theft, mere moving of a thing is an offence but in criminal misappropriation it is not.
In theft, property is moved without the consent of the owner whereas in the case of criminal misappropriation of property there might be possession of property with consent of the owner.
Dishonest intentions are apparent in both. In theft, it is shown when there is actual moving of property but in criminal misappropriation it is affected by actual misappropriation
Offences of Criminal Breach of Trust (Section 405-409)
According to Section 405, this offence requires a person to entrust a property or dominion over it onto another. This is basically a form of trust which the victim accords on the offender with respect to his property.
Secondly, the offender must misappropriate or convert that property to his own use. He may even dishonestly use or dispose of that property by violating a law regulating that position of trust. This may even lead to the violation of any express or implied contract between the offender and the victim.
For example, A may lend his car to his friend B to use it for transportation. B, instead, uses it for transporting illegal goods like ivory. Here, B is guilty of criminally breaching A’s trust.
Employees State Insurance Corporation Vs. S K Aggarwal[6]
The Supreme Court had held that the ‘principal employer’ under the Employees State Insurance Act means the ‘occupier’ or ‘owner’. Therefore, concerning the company, the company’s director will not be termed as the ’employer’ of the company because the company is the factory owner. Hence, the Supreme Court upheld the quashing of the criminal proceeding issued against the director initiated under section 405 of IPC
Essential:
- Entrusting any person with property or with domain over it;
- The person entrusted must –dishonestly misappropriated; or convert to his own use that property; or dishonestly use or dispose of that property or wilfully suffers any person to do so in violation of any direction of law or any legal contract made.
Punishment for Criminal Breach of Trust[7]
According to Section 406, the punishment for this offence is imprisonment up to 3 years or fine or both. In order to prosecute the offender, the complainant has the burden to prove his guilt.
In certain special transactions like transportation of goods, some persons may be in positions of trusts. For example, they may work as carriers, wharfingers or warehouse-keepers. The punishment for breaching trust under such cases includes imprisonment up to 7 years with fine.
Similarly, persons like office clerks and employees also enjoy a position of trust inherently under their duties. If they criminally breach that trust, their punishment also includes imprisonment up to 7 years with fine.
- Even public servants, bankers, merchants, brokers, attorneys oragents enjoy positions of trust with respect to properties. For example, a person may entrust his property with his advocate under a power of attorney agreement. Breach of trust by such persons is punishable with higher imprisonment up to 10 years with fine.
Difference between Theft and Criminal Misappropriation of Property –
The offence of theft is defined under S. 378 of IPC and the offence of criminal misappropriation of property is defined under S. 403 of IPC.
In the case of theft, from its initial possession it is wrongful but in criminal misappropriation of property it is lawful and innocent but with subsequent change of intention it is converted into unlawful taking.
In the case of theft, there is invasion of possession of another person by wrongdoer without their consent but in criminal misappropriation the offender is already in possession and creates an offence when they unlawfully misappropriate it.
In theft, mere moving of a thing is an offence but in criminal misappropriation it is not.
In theft, property is moved without the consent of the owner whereas in the case of criminal misappropriation of property there might be possession of property with consent of the owner.
Dishonest intentions are apparent in both. In theft, it is shown when there is actual moving of property but in criminal misappropriation it is affected by actual misappropriation
Difference between Theft and Criminal Breach of Trust-
The offence of theft is defined under Section. 378 of IPC whereas the offence of criminal breach of trust is defined under Section. 405 of IPC.
In the former there is wrongful taking of property out of the possession of the owner without their consent whereas in the latter the property is given in trust or on someone’s behalf and instead of discharging trust they misappropriated or disposed of in violation of law.
In theft there is no prior lawful possession whereas in criminal breach of trust there is prior possession of property.
In theft the offence is completed as soon as the property is taken away whereas in the latter the offence is completed when he misappropriated or used for his own use.
In theft there must be movable property whereas in criminal breach of trust the property can be both movable and immovable.
The punishment in theft and criminal breach of trust is of the same severity with imprisonment which may extend to 3 yrs. or with fine or with both.
comparative analysis between Theft and Misappropriation of property
The Offences of Theft and Criminal Misappropriation are given under the heading of crime against property in IPC. Theft can be defined as an act of taking any movable property out of the possession of any person without that person’s consent, moves that property for taking its possession. Whereas Criminal Misappropriation can be defined as an act of converting or misappropriating any movable property with dishonest intention for his own use. Both the offences deal with the movable property.
| Basis | Theft | Criminal Misappropriation |
| Provision under IPC | Offence of theft is defined under section 378 of Indian Penal Code, 1860 | Offence of Criminal Misappropriation is defined under section 403 of Indian Penal Code, 1860 |
| Intention | In Theft, the initial taking of the property is always unlawful. The intention behind such an act is always dishonest. | In Criminal Misappropriation, the initial step of taking property may be innocent and lawful. Dishonest intention develops subsequently. |
| Consent | In theft, property is moved without the consent or knowledge of the owner. | In Criminal Misappropriation, the owner might have come into possession of the property with the express consent of the owner or by some casualty. |
| Commission of offence | In theft, the moving of property is itself an offence. | In Criminal Misappropriation, the offence is said to be committed when the property is converted or misappropriated with dishonest intention for the offender’s own use. mere moving of property does not constitute an offence. |
| Right of Possession | In theft, the right of the possession is violated by the wrongdoer. | Under Criminal Misappropriation, there is no such infringement of right of possession as the offender is already in the possession of the property. |
| Punishment | Offence of theft is punishable with imprisonment of either description for a term which may extend to 3 years or with fine, or with both (Sec.379, IPC) | Offence of Criminal Misappropriation is punishable with imprisonment of either description for a term which may extend to 2 years or with fine, or with both (Sec.403, IPC) |
comparative analysis between theft and criminal breach of trust:
In the former there is a wrongful taking of a movable property out of the possession of the owner, i.e., by stealth without the owner’s knowledge, but in the latter the property is given on trust or received on one’s behalf and instead of discharging the trust, it is dishonestly misappropriated or used or disposed of in violation of the law. The owner here parts with something in good faith but the person who takes it keeps the thing for himself.
In theft there is no prior lawful possession; the offence is completed as soon as the property is dishonestly taken away, but in criminal breach of trust the offender prior to the offence is himself in possession of the property and the offence is completed when he dishonestly converted the same to his own use.Then in theft the property involved is a movable property, but in criminal breach of trust it may be any property. Criminal breach of trust is ordinarily punished with the same severity as theft, but where there is a greater degree of trust as in the case of a carrier, or a clerk or a servant entrusted with his master’s property or in the case of a public servant or banker, heavier punishment is provided under Sections 407, 408 and 409, I.P.C.
Comparative analysis between Criminal misappropriation and Criminal Breach of Trust:
In criminal misappropriation the property comes into the possession of the offender by some casualty or otherwise, and he afterwards misappropriated it. In the case of criminal breach of trust the offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or willfully suffers any other person to do so, instead of discharging the trust attached to it. (Ratan Lai).
In criminal misappropriation there is no contractual relationship, but there is such a relationship in criminal breach of trust
In criminal misappropriation there is the conversion of property coming into possession of the offender anyhow, but in criminal breach of trust there is the conversion of property held in fiduciary Offences against Property character.
A breach of trust includes criminal misappropriation, but the converse is not always true.
CONCLUSION
We can conclude that criminal misappropriation and criminal breach of trust cannot consider being the same offence. In criminal misappropriation the property comes into the possession of the accused by some natural manner. The criminal breach of trust is different from breach of trust as in the former there is dishonest intention. As there is no contractual relationship between the owner of the property and the accused in criminal misappropriation of property, it arises when the offender gets possession and misappropriated or converts that property for his own use. It is necessary that the property is of movable nature. In criminal breach of trust, the parties to them are in fiduciary capacity and under the legal contractual obligation with respect to property. Property can either be movable or immovable. The finder of the property in criminal misappropriation does not have the means to discover the true owner then he has to wait for some reasonable time period before approaching the property.
Lovely choudhary
Amity law school,Noida
[1] The Indian Penal Code (IPC) is the principal criminal code of India that defines crimes and provides punishments for almost all kinds of criminal and actionable wrongs.
[2] K.D. Gaur, Indian Penal Code.
[3] AIR 1972 SC 949, 1972 CriLJ 584, (1972) 3 SCC 841
[4] PSA Pillai, Criminal Law
[5] CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 153 of 1957
[6] 1991 (63) FLR 923, (1992) IILLJ 115 Bom, 1991 (1) MhL 935
[7] Ratan Lal &Dhira Lal, The Indian Penal Code