A COMPARISON BETWEEN CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST

Sasi K.G.

01. INTRODUCTION

Criminal Misappropriation and Criminal Breach of Trust are offences under Indian Penal Code, 1860. These offences are often tried clubbed together, and in certain circumstances, charge sheets made on either of these offences are discarded on the ground that the offence belongs to the other category. Thus these offences are simultaneously similar and distinct.

02. INDIAN PENAL CODE

Indian Penal Code, 1860 is a substantive criminal law defining offences and prescribing punishments for them.

The draft of the Indian Penal Code was prepared by the First Law Commission, chaired by Thomas Babington Macaulay in 1835 and was submitted to Governor-General of India Council in 1837. Its basis is the law of England freed from superfluities, technicalities and local peculiarities. Elements were also derived from the Napoleonic Code and from Edward Livingston's Louisiana Civil Code of 1825. The first final draft of the Indian Penal Code was submitted to the Governor-General of India in Council in 1837, but the draft was again revised. The drafting was completed in 1850 and the Code was presented to the Legislative Council in 1856, but it did not take its place on the statute book of British India until a generation later, following the Indian Rebellion of 1857. The draft then underwent a very careful revision at the hands of Barnes Peacock, who later became the first Chief Justice of the Calcutta High Court, and the future Puisne Judges of the Calcutta High Court, who were members of the Legislative Council, and was passed into law on 6 October 1860. The Code came into operation on 1 January 1862. Unfortunately, Macaulay did not survive to see his masterpiece come into force, having died near the end of 1859.[i]

However, Indian Penal Code did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code has since been amended several times and is now supplemented by other criminal provisions. Based on IPC, Jammu and Kashmir has enacted a separate code known as Ranbir Penal Code (RPC).

After the partition of the British Indian Empire, the Indian Penal Code was inherited by its successor states, the Dominion of India and the Dominion of Pakistan, where it continues independently as the Pakistan Penal Code. After the independence of Bangladesh from Pakistan, the code continued in force there. The Code was also adopted by the British colonial authorities in Colonial Burma, Ceylon (modern Sri Lanka), the Straits Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes in those countries. The Ranbir Penal Code applicable in Jammu and Kashmir is also based on this Code.[ii]

Indian Penal Code running from Section 1 to 511 has undergone 76 amendments so far in India. There are 26 chapters in Indian Penal Code including Chapters VA, IXA and XXA. Chapter XVII of Indian Penal Code is named “Of Offences against Property” which is subdivided into Of Theft ranging from Section 378 to 382, Of Extortion ranging from Section 383 to 389, Of Robbery and Dacoity ranging from Section 390 to 402, Of Criminal Misappropriation of Property covering Section 403 and 404, Of Criminal Breach of Trust ranging from Section 405 to 409, Of the Receiving of Stolen Property ranging from Section 410 to 414, Of Cheating ranging from Section 415 to 424, Of Mischief ranging from Section 425 to 440, and Of Criminal Trespass ranging from Section 441 to 462. Among the above Of Criminal Misappropriation of Property covering Section 403 and 404 and Of Criminal Breach of Trust ranging from Section 405 to 409 are the areas coming under this paper.

03. OF CRIMINAL MISAPPROPRIATION OF PROPERTY

Criminal misappropriation of Property covering Section 403 and 404, deals with Section 403 Dishonest Misappropriation of Property and Section 404 Dishonest misappropriation of properly possessed by deceased person at the time of his death.

01. Dishonest Misappropriation of Property under Indian Penal Code

The provisions of Dishonest Misappropriation of Property under Indian Penal Code are reproduced hereunder.

403. Dishonest misappropriation of property:- 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.

Illustrations

a) A takes property belonging to Z out of Z's possession in good faith, believing, at the time when he takes it, that the 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.

(b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent. Here, if A was under the impression that he had A’s implied consent to take the book for the purpose of reading it, A has not committed theft. But if A afterwards sells the book for his own benefit, he is guilty of an offence under this section.

(c) A and B being joint owners of a horse, A takes the horse out of B's possession, intending to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horse and appropriates the whole proceeds to his own use, he is guilty of an offence under this section.

Explanation 1:- A dishonest misappropriation for a time only is a misappropriation within the meaning of this section.

Illustration

A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowing that the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has committed an offence under this section.

Explanation 2:- A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property a reasonable time to enable the owner to claim it.

What are reasonable means or what is a reasonable time in such a case, is a question of fact.

It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believes the real owner cannot be found.

Illustrations

(a) A finds a rupee on the high road, not knowing to whom the rupee belongs. A picks up the rupee. Here A has not committed the offence defined in this section.

(b) A finds a letter on the road, containing a bank note. From the direction and contents of the letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence under this section.

(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost the cheque. But the name of the person, who has drawn the cheque, appears. A knows that this person can direct him to the person in whose favour the cheque was drawn. A appropriates the cheque without attempting to discover the owner. He is guilty of an offence under this section.

(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z, but afterwards appropriates it to his own use. A has committed an offence under this section.

(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discover that it belongs to Z. and appropriates it to his own use. A is guilty of an offence under this section.

(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to discover the owner. A is guilty of an offence under this section.

02. What is Criminal Misappropriation of Property?

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.[iii] The offence consists in the dishonest misappropriation or conversion, either permanently or for a time, of property which is already without wrong in the possession of the offender.[iv] See illustrations (a), (b) and (c) which show that the original innocent taking amounts to criminal misappropriation by subsequent acts. Illustration (a) is qualified by illustration (b).[v]

 03. Classification of Criminal Misappropriation under Cr.P.C.

As per the First Schedule of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) Section 403 of IPC, Punishment is imprisonment for 2 years, or fine, or both, the offence is Non-cognizable, Bailable, Triable by Magistrate and Compoundable by the owner of the property misappropriated with the permission of the court.

04. Ingredients of Dishonest Misappropriation of Property under Section 403 of IPC

The main ingredients of an offence under Section 403 are the following.

i. The Mes Rea of Dishonesty.

ii. Dishonest Misappropriation or conversion of property to one’s own use.

iii. Such property must be movable.

The basic requirement for attracting the section are: (i) the movable property in question should belong to a person other than the accused; (ii) the accused should wrongly appropriate or wrongly convert such property to his own use; and (iii) there should be dishonest intention on the part of the accused. Here again the basic requirement is that the subject matter is dishonest misappropriation or conversion should be someone else's movable property. When NEPC India owns / possesses the aircraft, it obviously cannot misappropriate or convert to its own use such aircraft or parts thereof. Therefore S. 403 is also not attracted.[vi] Section 403 uses the words 'dishonest’ and 'misappropriate'. These are necessary ingredients of an offence under S. 403, IPC.[vii] Supreme Court found that if neither of these ingredients are satisfied in the facts and circumstance of the case, it cannot be said that there is any dishonest intention on the part of appellants nor it can be said that TCPL or the appellants have misappropriated or converted the movable property of the complainant to their own use. Since the basic ingredients of the relevant Section in the Indian Penal Code are not satisfied, the order taking cognizance of the offence as well as the issue of summons to the appellants is wholly uncalled for.

01.The Mes Rea of Dishonesty

The very wording in Section 403, “Whoever dishonestly misappropriates or converts to his own use” envisages the necessary Mens Rea element of dishonesty for attracting Dishonest Misappropriation of Property.

Where a person took possession of a bullock which had strayed, but there was no evidence that it was stolen property, and he dishonestly retained it, it was held that he was guilty of criminal misappropriation under Section 403 but not under Section 411.[viii]

The accused purchased for one anna, from a child aged six years, two pieces of cloth valued at fifteen annas which the child had taken from the house of a third person. It was held that assuming that a charge of dishonest reception of property (S. 411) could not be sustained owing to the incapacity of the child to commit an offence, the accused was guilty of criminal misappropriation, if he knew that the property belonged to the child's guardian and dishonestly appropriated it to his own use.[ix] A prosecution for dishonest misappropriation cannot lie against the managing coparcener until accounts have been taken and shares allotted.[x]

As the element dishonestly is a necessary ingredient of the offence under Section 403, the successful defence of bonafide action alone shall be sufficient to acquit the accused.

02. Dishonest Misappropriation or conversion of property to one’s own use

Section 23 of IPC is relevant when dealing with this offence too in ascertaining whether the accused has misappropriated or converted the property for his own use. It is quoted below.

“Wrongful gain:- wrongful gain is gain by unlawful means of property to which the person losing it is legally entitled.

 Wrongful loss:- Wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled.

Gaining wrongfully , losing wrongfully:- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.”

There must be actual conversion of the thing misappropriated to the accused's own use. Where, before the accused found a thing, and merely retained it in his possession, he was acquitted of the offence.[xi] Where the accused found a purse on the pavement of a temple in a crowded gathering and put it in his pocket but was immediately after arrested, it was held that he was not guilty of criminal misappropriation, for it could not be assumed that by the mere act of picking up the purse or putting it in his pocket he intended to appropriate its contents to his own use.[xii] This section is in no way restricted to appropriating property to one's own use. If a trustee repudiates the trust and asserts that he holds the property on behalf of a person other than the one who entrusted him with it, he has misappropriated the property just as much as he would have been said to misappropriate it if he had been putting forward his own claims to it.[xiii]

Misappropriation or conversion of property to his own use in the Actus Rea in this offence. The acts under this offence may be under any of the following types. But they are not exhaustive.

Explanation 1 to section 403 makes a temporary misappropriation also within the purview of the offence.

Servant receiving money on behalf of master:- A servant, who retained in his hand money which he was authorized to collect, and which he did collect, from the debtor of his master, because money was due to him as wages, was held guilty for criminal misappropriation.[xiv] Where the accused, a Government servant, whose duty it was to receive certain money and to pay it into treasury on receipt, admitted that he had retained two sums of money in his possession for several months, but on fearing detection had paid them into the treasury, making a false entry at the time in his books with a view to avert suspicion, it was held that he was guilty of this offence.[xv] Fifteen bundles of electric wire were seized from the accused. Nobody has come forward to own the impugned electric wire. The accused is claiming the impugned electric wire of his own; however, he has been made accused on account of non-furnishing of the receipt of the electric wire though it has come on record that the applicant bought the wire from one Rubban Kabadi. The police did not take any pains to record the statement of said Rubban. There is no material on record in order to show that any person except the applicant is claiming the impugned wire of his own. Merely because the applicant could not produce the receipt of the purchase of the wire, it is difficult to hold that prima facie there is any material against the applicant in order to rope him under S. 403, IPC.[xvi]

Secreting letters:- The accused, a servant in the Postal Department, while assisting to the sorting of letters, secreted two letters, with the intention of handing them over to the delivery peon and sharing with him certain moneys payable upon them; it was held that the accused was guilty of attempt to commit dishonest misappropriation of property and of theft.[xvii]

Harvesting crops under attachment:- Where a judgment-debtor, whose standing crops were attached, harvested them while the attachment was in force, he was held guilty of this offence.[xviii]

Exchanging railway tickets:- A and B were about to travel by the same train from Benares City. A had a ticket for Ajudhia. B had two tickets for Banaras Cantonment. A voluntarily handed over her ticket to B in order that he might tell her if it was right. B, under the pretense of returning A's ticket, substituted therefor one of his own, and kept A’s ticket, It was held that B was guilty of criminal misappropriation rather than cheating.[xix]

Retention of streedhan:- In a matrimonial case the wife was living with her father due to the misbehavior of her husband. She claimed back streedhan from her in-laws which they refused to return. It was held that the offence of dishonest misappropriation and criminal breach of trust are not continuing offences. The retention of streedhan would be in the same category.[xx]

Purchase of goods with stolen cheques:- A customer came to a shop. He was carrying cheques with him and knew that they were stolen. He talked with the shop assistant who persuaded the shop manager to sell goods on the strength of the cheques. The shop assistant was convicted. The House of Lords held that an act authorized by the owner of the goods could still constitute wrongful appropriation of goods where such consent had been obtained by deception. A person who obtains by deception the agreement of the owner to sell his goods in return for a stolen cheque is guilty of wrongful appropriation of goods.[xxi]

Main contractor receiving payment but not paying to sub-contractor:- The principal or main contractor contracted with a sub-contractor for completion of the project. The sub-contractor filed a criminal complaint alleging that the main contractor had received payment under the project but was not paying him. The Supreme Court said that the money paid to the main contractor was not in the nature of money or immovable property of the sub-contractor. Hence, there could be no misappropriation. It was a claim of civil nature.[xxii]

Explanation 3:- Property found on open plain:- Where the accused found a gold mohur (sovereign) on an open plain, and sold it the next day to a shroff for its full value and appropriated the sale proceeds, it was held that, in the absence of any information as in the circumstances under which the coin was lost, and as it was not improbable that the property in the coin had been abandoned by the original owner, the accused could not be convicted of criminal misappropriation.[xxiii] Where the accused found a spanner of no appreciable value on a public road and attempted to sell it, it was held that he was not guilty of criminal misappropriation as his case came under illustration (a).[xxiv]

IPC Section 410 defines Stolen Property as, "410. Stolen property--Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally- misappropriated or in respect of which criminal breach of trust has been committed, is, designated as "stolen property", whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property." The above definition unmistakably shows that property which has been criminally misappropriated is included in the definition of the expression "stolen property" and significantly it continues to be stolen property till it comes into the possession of a person legally entitled to it. The irresistible conclusion is that once the offence of criminal misappropriation is committed, it will continue till the property criminally misappropriated is restored to the person entitled to the possession thereof.[xxv]

03. Types of Property that may be misappropriated or converted

The provision specifically mentions “any movable property.” Let us consider the scope of the word “any movable property.”

'Any movable property':- The misappropriation must be of movable property. A bull set at large in accordance with Hindu religious usage is not 'property' of anyone, and not the subject of ownership by any person, as the original owner has surrendered all his rights as its proprietor, and has given the beast its freedom to go whithersoever it chose.[xxvi] Such a bull cannot be the subject of criminal misappropriation. The fact that such a bull receives some attention from the cow-herd of the persons who set it at liberty and is not used for breeding purposes without their permission being asked, is not inconsistent with a total surrender by those who set it at liberty of all their rights as proprietors.[xxvii]

The word "misappropriation" is in the illustrations and in the explanations to this section replaced by the expression "appropriates to his own use", which seems equivalent to “setting apart for his own use", to the exclusion of others. It does not, of course, follow from this that setting apart by one person for the use of some person other than himself and the true owner is not a misappropriation.[xxviii] A Hindu girl having picked up a gold necklet made it over to a sweeper girl. The accused, the brother of the finder, represented to the latter that the necklet belonged to a man of his acquaintance, and thus got possession of it from her. On enquiry by a police constable a few hours later, he repeated the representation but afterwards gave up the necklet. These representations were found to be untrue to the knowledge of the accused. It was held that the accused was guilty of this offence.[xxix]

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

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

Entrustment of cash:- Where a certain amount of cash, which was entrusted to the cashier, was missing from the bank and the money was neither found with the cashier nor at his home, the court said that he could be held liable for negligence but not for breach of trust in the absence of proof for misappropriation by him.[xxxii]

Joint property:- Where the accused is interested in the property jointly with others, he is not necessarily guilty of a criminal act if he takes possession of it, and disposes of it.[xxxiii] No coparcener in a joint Hindu family having before division a right in or to any specified share in any particular item of the family property, a prosecution for dishonest misappropriation cannot lie against the managing coparcener until accounts have been taken and shares allotted.[xxxiv] An owner of property, in whichever way he uses his property and with whatever intention, will not be liable for misappropriation and that would be so even if he is not the exclusive owner thereof. A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes he may be accountable civilly to the other partners. But he does not thereby commit misappropriation.[xxxv]

05. Dishonest misappropriation of property possessed by deceased person at the time of his death under Indian Penal Code

The provisions of Section 404 Dishonest misappropriation of properly possessed by deceased person at the time of his death are given below.

404. Dishonest misappropriation of properly possessed by deceased person at the time of his death:- 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 decease, 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.

Illustration

Z dies in possession of furniture and money. His servant A, before the money comes into the possession of any person entitled to such possession, dishonestly misappropriates it. A has committed the offence defined in this section.

06. What is dishonest misappropriation of property possessed by deceased person at the time of his death?

This section relates to a description of property peculiarly needing protection. The offence consists in the pillaging of movable property during the interval which elapses between the time when the possessor of the property dies, and the time when it comes into the possession of some person or officer authorized to take charge of it.[xxxvi] The very object of this provision was to protect the property which was in possession of deceased at the time of his death till the person(s) entitled to it step in.[xxxvii] Where a Head Constable had taken away by force e.g., by giving a slap, the watch, gold ornaments and cash from a boatman who had recovered these articles from a dead body of a drowned person but instead of entering them in official records, dishonestly kept them with himself, and produced them only when confronted with a boatman, it was held that apart from an offence under S. 394 he had also committed an offence under s. 404, IPC.[xxxviii] The accused killed a woman, removed ornaments from her body and hid her dead body in a jungle inside a bush. He sold the ornaments so removed to a goldsmith. His conviction under sections 300, 404 and 201 on the basis of his extrajudicial confession was upheld. However, he was sentenced only under s. 302.[xxxix]

07. Classification of Dishonest misappropriation of property possessed by deceased person at the time of his death under Cr.P.C.

As per the First Schedule of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) Section 404 of IPC has Punishment of imprisonment for 3 years and fine, and is Non-Cognizable, Bailable, Triable by Magistrate of the first class and Non-compoundable. If the offence is committed by clerk or person employed by deceased, Punishment is imprisonment for 7 years ,or fine, or both and it is Cognizable, Bailable, Triable by Magistrate of the first class and Non-compoundable.

08. Ingredients of Dishonest misappropriation of property possessed by deceased person at the time of his death under Section 404 of IPC

Section 404 is a provision to prevent the pillaging of movable property during the period between the death of the person in possession of the property and the actual possession of the same by his legal successor or heir. To establish an offence under this section the following ingredients should be proved.

1.            There should be Mens Rea in the form of dishonesty and knowledge of possession.

2.            The property in question should be movable property.

3.            The movable property must have been owned by a deceased person.

4.            The movable property should not have reached the possession of the successor or legal heir of the deceased person.

5.            The accused should misappropriate or convert to his own use the above property.

6.            The degree of punishments vary according to persons involved

01. Mens Rea in the form of dishonesty and knowledge of possession

In addition to the element of dishonesty as stated in Para 04.01 of this paper while dealing with Section 403, knowledge that the misappropriated or converted property was in the possession of a deceased person at the time of that person's decease, and that it has not since been in the possession of any person legally entitled to such possession, is a necessary element of Mes Rea in an offence under Section 404 of IPC.

02. The property in question should be movable property

No prosecution in respect of an immovable property shall sustain under Section 404, but only movable property.

The Bombay High Court has held that the word 'property' in this section does not refer to immovable property, but only to movable property. Hence where a person was convicted of misappropriating the house of a deceased person, the conviction was annulled.[xl] The Madhya Bharat High Court has also taken the same view.[xli] The Allahabad High Court has dissented from this view. It lays down that this section contains no such express limitation. This section and some of the other sections following it refer to property without any qualifying description; and in each the context must determine whether the property referred to is intended to be movable property or property movable and immovable. Where the accused in order to obtain a wrongful gain to the prejudice of a decree- holder whose decree was still pending, removed some rafters from a house which was in the possession of a deceased person at the time of her death and had not since been in the possession of any person legally entitled to it, it was held that the accused were guilty of an offence under this section. The property removed by the accused was immovable property so long as it was attached to the house but became movable property when it was severed from the house.[xlii] Mallela Setharamaiah v. State of A.P.[xliii] deals with the charges under the section could not be made out. In Harun Ness Khanam v. Md. Maklisur[xliv] articles belonging to deceased were recovered from the accused, the he did not claim them to be his property, conviction under S. 404 was awarded; body of the deceased was decomposed, and cause of death could not be known.[xlv]

03. The movable property must have been owned by a deceased person.

Section 404 stipulates that the misappropriated or converted property should be owned by a deceased person. In a case the witness has clearly stated that the petitioner's mother had taken certain movable property with her when she shifted to daughter's house. Hence, the movable property belonging to her was in the house of respondent No. 2 and 3 when the petitioner's mother expired. Thus, they were duty bound upon her death to return the said property to the petitioner. However, according to the petitioner, the said property has not been returned to him so far. Hence, prima facie, offence under Sec. 404, IPC has been made out.[xlvi] It is the case of the prosecution that immediately after committing the offence, he took the cycle of the deceased and kept it in the house of PW 12 saying that he would collect the cycle again. It is to be seen that he had never stated that the cycle belongs to deceased nor the cycle was identified as that belonging to deceased and nobody has deposed about the ownership of the cycle. Therefore the prosecution has failed to establish the offence against the appellants under S. 404 of IPC.[xlvii]

04. The movable property should not have reached the possession of the successor or legal heir of the deceased person

Section 404 provides that the misappropriated or converted property should not have reached the hands of the successors or legal heirs of the deceased person who owned it. Recovery of the silver anklets which was missing from the deceased at the instance of accused immediately after the commission of murder forms part of same transaction. Conviction is held proper.[xlviii]

05. The accused should misappropriate or convert to his own use the above property

The Actus Reus of Section 404 is dishonest misappropriation or conversion of the movable property of the deceased. The circumstances namely recovery of revolver of the deceased from accused, along with live and spent cartridges, the recovery of mobile handset of Panasonic from the custody of the accused, and the fact that the accused was using the same soon after the murder of the deceased with mobile phone which was registered in the name of the accused (and that he continued to use it till his arrest), leaves no room for any doubt, that the prosecution has brought home the charges as have been found to be established against the accused.[xlix] Articles belong to the deceased recovered from the accused based on his disclosure statement. Accused could not offer any explanation. Conviction confirmed by the Supreme Court.[l] Gold chain of deceased recovered from one of the accused. Conviction is held proper.[li]

06. The degree of punishments vary according to persons involved

The punishment awarded to an accused in Section 44 vary as per person involved. In the case of ordinary persons without any fiduciary holding of property, the punishment is imprisonment of either description for a term which may extend to three years and 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.

04. OF CRIMINAL BREACH OF TRUST

Of Criminal Breach of Trust covering Sections 405. Criminal Breach of Trust, 406. Punishment for criminal Breach of Trust, 407. Criminal Breach of Trust by carrier, etc., 408. Criminal Breach of Trust by clerk or servant and 409. Criminal Breach of Trust by public servant, or by banker, merchant or agent.

01. Criminal Breach of Trust under Indian Penal Code

The provisions of Criminal Breach of Trust under Indian Penal Code are reproduced hereunder.

405. Criminal Breach of Trust:- Whoever, being in any manner entrusted with property, 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”.

[lii][Explanation [liii][1]. —A person, being an employer [liv][of an establishment whether exempted under section 17 of the Employees’ Provident funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]

[lv][Explanation 2. —A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and administered by the Employees’ State Insurance Corporation established under the Employees’ State Insurance Act, 1948 (34 of 1948), shall  be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.]

Illustrations

(a) A, being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriate them to his own use. A has committed criminal breach of trust.

(b) A is a warehouse-keeper. Z gong on a Journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse room. A dishonestly sells the goods. A has committed criminal breach of trust.

(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or implied contract between A and Z, that all sums remitted by Z to A shall be invested by A, according to Z’s direction. Z remits a lakh of rupees to A, with directions to A to invest the same in Company’s paper. A dishonestly disobeys the direction and employs the money in his own business. A has committed criminal breach of trust.

(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’s advantage  to hold shares in the Bank of Bengal, disobeys Z’s directions, and buys shares in the Bank of Bengal, for Z, instead of buying Company’s paper, here, though Z should suffer loss, and should be entitled to bring a civil action against A, on account of that loss, yet A, not having acted dishonestly, has not committed criminal breach of trust.

(e) A, a revenue-officer, is entrusted with public money and is either directed by law, or bound by a contract, express or implied, with the Government, to pay into a certain treasury all the public money which he holds. A dishonestly appropriates the money. A has committed criminal breach of trust.

(f) A, a carrier, is entrusted by Z with Property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.

406. Punishment for criminal breach of trust:- 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.

407. Criminal breach of trust by carrier, etc:- Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

408. Criminal breach of trust by clerk or servant:- Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may  extend to seven years, and shall also be liable to fine.

409. Criminal breach of trust by public servant, or by banker, merchant or agent:- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with [lvi][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

02. What is Criminal Breach of Trust?

The offences of criminal breach of trust, as defined under this section, is similar to the offence of embezzlement under the English law. As the title to the offence itself suggests, entrustment or property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are 'in any manner entrusted with property'. So, it extends to entrustments of all kinds-whether to clerks, servants, business partners or other persons, provided they are holding a position of trust. "The term "entrusted" found in 405, IPC governs not only the words "with the property" immediately following it but also the words "or with any dominion over the property" The other natures of the offence are similar to that of Criminal Misappropriation of Property under Section 403 of Indian Penal Code.

The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it.[lvii] Two distinct parts were involved in the commission of the offence of criminal breach of trust. The first part consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is the misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.[lviii] A trust contemplated by Section 405 would arise only when there is an entrustment of property or dominion over property.

There has, therefore, to be a property belonging to someone which is entrusted in the person accused of the offence under Section 405. The entrustment of property creates a trust which is only an obligation annexed to the ownership of the property and arises out of a confidence reposed and accepted by the owner.[lix] However, it must be borne in mind that Section 405 IPC does not contemplate the creation of a trust with all the technicalities of the law of trust. It contemplates the creation of a relationship whereby the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain event.[lx]

03. Classification of Criminal Breach of Trust under Cr.P.C.

As per the First Schedule of the Code of Criminal Procedure, the following classifications are given for Sections under Criminal Breach of Trust.

The Punishment Section of Section 405 is given in Section 406.

406. Punishment for criminal breach of trust:- Punishment id imprisonment for 3 years and fine, or both Non-cognizable, Bailable, Triable by Magistrate of the first class and Compoundable by the owner of the property in respect of which breach of trust has been committed, with the permission of the court.

407. Criminal breach of trust by carrier , etc.:- Punishment is imprisonment for 7 years and fine, Cognizable, Non-bailable, Triable by Magistrate of the first class and Compoundable by the owner of the property in respect of which the breach of trust has been committed with the permission of the court.

408. Criminal breach of trust by clerk or servant:- Punishment is imprisonment for 7 years and fine, Cognizable, Non-bailable, Triable by Magistrate of the first class and Compoundable by the owner of the property in respect of which the breach of trust has been committed with the permission of the court.

409. Criminal breach of trust by public servant, or by banker, merchant or agent:- Punishment is imprisonment for life, or imprisonment for 10 years and fine, Cognizable, Non-bailable, Triable by Magistrate of the class and Non-compoundable.

04. Ingredients of Criminal Breach of Trust under Section 405-409 IPC

The main ingredients of offences under Section 405-409 are one and the same for Sections 405-409 of IPC, except for the person who commits such criminal breach of trust.

The essential ingredients of the offence of criminal breach of trust under Section 405 are;

(1)   The accused must have Mens Rea

(2)   The accused must be entrusted with the property or with dominion over it,

(3)   The person so entrusted must use that property, or;

(4)   The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation,

(a) of any direction of law prescribing the mode in which such trust is to be discharged, or;

(b) of any legal contract made touching the discharge of such trust.

(5) The property may be movable or immovable.

(6) The degree of punishments vary according to persons involved

01. The accused must have Mens Rea

The elements of Mens Rea in Criminal Breach of Trust are dishonesty, violation of law or contract or willful suffering as expressed by the phrase “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, …”

The criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly but also in violation of any direction of law or any contract express or implied relating to carrying out the trust.[lxi]

Proof of intention, which is always a question of the guilty mind of the person, is difficult to establish by way of direct evidence. In Krishan Kumar V Union of India[lxii], the accused was employed as an assistant storekeeper in the Central Tractor Organization (CTO) at Delhi, whose duty was the taking of delivery of consignment of goods received by rail for CTO. The accused had taken delivery of a particular wagonload of iron and steel from Tata Iron and Steel Co, Tatanagar, and the goods were removed from the railway depot but did not reach the CTO. When questioned, the accused gave a false explanation that the goods had been cleared, but later stated that he had removed the goods to another railway siding, but the goods were not there. The defense version of the accused was rejected as false. However, the prosecution was unable to establish how exactly the goods were misappropriated and what was the exact use they were put to. In this context, the Supreme Court held that it was not necessary in every case to prove in what precise manner the accused person had dealt with or appropriated the goods of his master. The question is one of intention and not direct proof of misappropriation. The offence will be proved if the prosecution establishes that the servant received the goods and that he was under a duty to account to his master and had not done so. It was held that the prosecution has established that the accused received the goods and removed it from the railway depot. That was sufficient to sustain a conviction under this section. Similarly, dishonest misappropriation or conversion may not ordinarily be a matter of direct proof, but when it is established that property, is entrusted to a person or he had dominion over it and he has rendered a false explanation for his failure to account for it, then an inference of misappropriation with dishonest intent may readily be made.[lxiii] In another case, the accused was in possession of the keys to a safe. It was held that the accused was liable because he alone had the keys and nobody could have access to the safe, unless he could establish that he parted with the keys to the safe. As seen in the case of criminal misappropriation, even a temporary misappropriation could be sufficient to warrant conviction under this section.[lxiv]

To constitute the offence of criminal breach of trust punishable under S. 406 of the Indian Penal Code, there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. The misappropriation or conversion or disposal must be with a dishonest intention. Every breach of trust gives rise to a suit for damages, but it is only when there is evidence of a mental act of fraudulent misappropriation that the commission of embezzlement of any sum of money becomes a penal offence punishable as criminal breach of trust. It is this mental act of fraudulent misappropriation that clearly demarcates an act of embezzlement which is a civil wrong or tort, from the offence of criminal breach of trust. In the present case, apparently the prosecution has failed to establish the offence of cheating and criminal breach of trust in the absence of mens rea. In such view of the matter, the accused persons could not have convicted.[lxv]

Dishonest intention is the gist of the offence. If a person admits the appropriation alleging a right in himself, no matter how unfounded, or sets up an excuse, no matter how frivolous, this offence is not committed. A bare refusal by the accused to allow the removal of a box left in his house by the complainant, unless some debt due to him by the complainant is paid does not amount to criminal breach of trust.[lxvi]

A temporary misappropriation may also constitute a criminal breach of trust. The bank officials in this case made public money available to a private party contrary to statutory provisions and Departmental instructions. The dishonest intention was self-evident.[lxvii]

Criminal or dishonest intention is a sine qua non in an offence of criminal breach of trust. This being so the prosecution has to show that the accused dishonestly misappropriated or converted to his own use or dishonestly disposed of property entrusted to him. The prosecution must prove 'entrustment' or 'dominion' over the property with the person proceeded and the person so entrusted has dishonestly misappropriated or converted that property. Even if the prosecution succeeds in proving entrustment, it would fail to establish the offence against the accused, if it fails to prove that he has misappropriated the property entrusted.[lxviii] Thus where a sarpanch, contrary to the rules which permitted him to keep only a sum of Rs.250.00, kept with him a cash exceeding Rs.21,300.00 without depositing the same as required by the Sub-divisional Magistrate but there was no evidence to show that he had the slightest dishonest intention to misappropriate the amount or had caused any wrongful loss to the panchayat or wrongful gain to himself by keeping money in his possession for spending in accordance with the wishes of the villagers for the welfare of the village and the Panchayat, it was held that the elements of misappropriation were not satisfied in the instant case even if he was somewhat negligent in not keeping proper accounts or committed any irregularity by keeping the money with him, especially when not a single villager had complained against him, rather they in one voice said that under his management the income of the Panchayat had increased and they were all benefited by his services.[lxix] It has been held that a mere error of judgment does not attract criminal liability.[lxx]

If a person receives money which he is bound to account for and does not do so, he commits this offence, although no precise time can be fixed at which it was his duty to pay over the money.[lxxi] Similarly, "in the case of a servant charged with misappropriating the goods of his master the elements of criminal offence of misappropriation will be established if the prosecution proves that the servant received the goods, that he was under a duty to account to his master and had not done so. If the failure to account was due to an accidental loss the facts being within the servant's knowledge, it is, for him to explain the loss.[lxxii] The matter was further clarified by the Supreme Court to say, "conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue an inference of misappropriation with dishonest intent may readily be made".[lxxiii]

Wilfully suffers any other person so to do:- 'Wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence,[lxxiv] but so that the mind of the person who does the act goes with it.[lxxv]

02.   The accused must be entrusted with the property or have dominion over it

The entrustment, be it legal, fiduciary, or by an express or implied contract or a dominion over the property embezzled is a necessary ingredient of an offence under Section 405 of IPC.

As the title to the offence itself suggests, entrustment of a property is an essential requirement before any offence in this section takes place. The language of this section is very wide. The words used are, ‘in any manner entrusted with property’. So it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ‘trust’. The word entrust is not a term of art. In common parlance, it embraces all cases in which a thing handed over by one person to another for specific purpose. The term ‘entrusted’ is wide enough to include in its ambit all cases in which property is voluntarily handed over for specific purpose and is dishonestly disposed of contrary to terms on which possession has been handed over.[lxxvi] Entrustment need not be expressed, it can be implied.[lxxvii]

The government sold cement to the accused only on the condition that it will be used for construction work. However, a portion of the cement purchased was diverted to a godown. The accused was sought to be prosecuted for criminal breach of trust. The Supreme Court held that the expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing over the property must have confidence in the person taking the property so as to create a fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. If the accused had violated the conditions of purchase, the only remedy is to prosecute him under law relating to cement control. But no offence of criminal breach of trust was made out.[lxxviii]

When securities are pledged with a bank for specific purpose on specified conditions, it would amount to entrustment. Similarly, properties entrusted to directors of a company would amount to entrustment, because directors are to some extent in a position of trustee. However, when money was paid as illegal gratification, there was no question of entrustment.[lxxix]

The accused, a sub-inspector (SI) of police, had gone to investigate a theft case in a village. In the evening, he saw one person named Tika Ram coming from the side of the canal and hurriedly going towards a field. He appeared to be carrying something in his dhoti folds. The accused searched him and found a bundle containing currency notes. The accused took the bundle and later returned it. The amount returned was short by Rs. 250. The Supreme Court held that the currency notes were handed over to the SI for a particular purpose and Tika Ram had trusted the accused to return the money once the accused satisfied himself about it. If the accused had taken the currency notes, it would amount to criminal breach of trust.[lxxx]

When the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property, or willfully suffers and other person to do so, he commits criminal breach of trust.[lxxxi] The word 'dominion' connotes control over the property. A director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same.[lxxxii]

The accused persons kept the entire Stridhan and in fact converted the various items of dowry to their own use. They thereby committed an offence of criminal breach of trust punishable under Section 406, read with Section 34, Indian Penal Code.[lxxxiii]

However, in respect of partnership firms, it has been held that though every partner has dominion over property by virtue of being a partner, it is not a dominion which satisfies the requirement of Section 405, as there is no 'entrustment of dominion, unless there is a special agreement between partners making such entrustment.

Explanations (1) and (2) to the section provide that an employer of an establishment who deducts employee's contribution from the wages payable to the employee to the credit of a provident fund or family pension fund or employees state insurance fund, shall be deemed to be entrusted with the amount of the contribution deducted and default in payment will amount of the contribution deducted and default in payment will amount to dishonest use of the amount and hence, will constitute an offence of criminal breach of trust. The definition of principal employer under the Employees State Insurance Act means the owner or occupier. Under the circumstances, in respect of a company, it is the company itself which owns the factory and the directors of the company will not come under the definition of 'employer.' Consequently, the order of the High Court quashing the criminal proceedings initiated u/ss 405 and 406, IPC was upheld by the Supreme Court.[lxxxiv]

The word ‘dominion’ connotes control over the property. A director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same.[lxxxv]

In respect of partnership firms, though every partner has dominion over property by virtue of being a partner, it is not a dominion which satisfies the requirement of s 405, as there is no ‘entrustment of dominion, unless there is a special agreement between partners making such entrustment.[lxxxvi]

"Entrustment" being the first ingredient of breach of trust, if it is missing, there would be no criminal breach of trust.[lxxxvii]

The words “in any manner” do not enlarge the term "entrustment" itself and, unless there is entrustment, the transaction in question cannot be affected by the terms of that section.[lxxxviii] The word ‘entrusted’ is not a term of law. In its most general significance all it imports is a handing over of the possession for some purpose which may not imply the conferring of any proprietary right at all.[lxxxix] The natural meaning of 'entrusted' involves that the assured should by some real and conscious volition have imposed on the person, to whom he delivers the goods, some species of fiduciary duty.[xc] The expression "entrustment" carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing over property must have confidence in the person taking the property so as to create a fiduciary relationship between them.[xci] The word "entrusted" is not used in its legal sense and is not necessarily a term of law. It may have different implications in different contexts. In order that money be "entrusted" to the accused person, it should be transferred to him in circumstances which show that, notwithstanding its delivery, the property in it continues to vest in the prosecutor and the money remains in the possession and control of the accused as a bailee and in trust for the prosecutor as a bailer to be restored to him or applied in accordance with his instructions.[xcii] A person who obtains possession of property by a trick cannot be deemed to have been entrusted with property within the meaning of this section. A trust implies confidence placed by one man in another. It implies necessarily that the confidence was freely given and that there is a true consent. There is no true consent if confidence is obtained as a result of a trick. If there was a trick there could be no true entrustment. Where the accused obtained utensils representing that he was a tinner and would return the utensils on the very day after repairing them, but he did not return the utensils and it was found that he was not a tinner, it was held that he was guilty of cheating and not of criminal breach of trust.[xciii] The complainant executed a hand-note in favour of the accused and also pawned ornaments with him. The accused then evaded settlement of account and return of the hand-note and the ornaments, and so panchas settled the total dues at Rs.155 which the complainant paid, but the accused on the pretext of bringing the document from inside the house bolted away. He was charged with criminal misappropriation of the sum of Rs.155. It was held that there was no breach of trust because there was no entrustment, the money was not given in trust, but in discharge of a debt, and the money became the accused’s property as soon as he received it.[xciv]

Neither the complaint nor the sworn statements of witnesses stated that any property was entrusted at all to any of the accused persons or they had domain over any property or that there was an agreement to entrust any property to them. No offence under S. 405. The appointment of those persons was of consignment stockists.[xcv] Non-payment of contribution of employees to retirement fund does not amount to offence u/s. 409.[xcvi]  The complainant alleged that he entrusted Rs. 50,000 to the vice president of a political party on her assurance to give him a party ticket. The receipt for the money did not mention this purpose. She proved that the complainant was a District President, who deposited the money in general for election purpose. The court said that no offence was made out. Once entrustment is proved, the prosecution has not to prove any misappropriation. It is for the accused to prove in his defense that there was no misappropriation. The offence becomes proved when it is shown that the money has not been applied to the purpose for which it was entrusted.[xcvii]

03.   The person so entrusted must use that property for his own use

Section 23 of IPC is relevant here also. Dishonest misappropriation or conversion may not ordinarily be a matter of direct proof, but when it is established that property, is entrusted to a person or he had dominion over it and he has rendered a false explanation for his failure to account for it, then an inference of misappropriation with dishonest intent may readily be made.[xcviii] When the accused was in possession of the keys to a safe, he was held liable because he alone had the keys and nobody could have access to the safe, unless he could establish that he parted with the keys to the safe. As seen in the case of criminal misappropriation, even a temporary misappropriation could be sufficient to warrant conviction under this section.[xcix]

In cases of criminal breach of trust a distinction has to be drawn between the person entrusted with property and one having control or general charge over the property in case of the former, if it is found that the property is missing, without further proof, the person so entrusted will be liable to account for it. In the latter case, that person will be liable only when it is shown that he misappropriated it or was a party to criminal breach of trust committed in respect of that property by any other person.[c]

Where the allegation was that the daughter-in-law to whom certain gold ornaments were handed over for safe custody in her personal locker in a bank were taken away by her while leaving away her husband's home and not coming back because of strained relations, and nothing could be recovered either from the locker or from her father’s place where she lived, nor her signature on the list of ornaments taken at the time of the alleged entrustment was compared with her proven signature, it was held that the charge of Criminal breach of trust was not established. Strained relations lent their own doubt to the story.[ci]

Terms of S. 405 are very wide. They apply to one who is in any manner entrusted with property or dominion over property. Section 405 does not require that trust should be in furtherance of any lawful object. It merely provides that a person commits criminal breach of trust if he dishonestly misappropriates or converts to his own use the property entrusted to him.[cii]

The position of a shroff of a battery with reference to the custody of Government moneys entrusted to him being that of a cashier, his failure to produce the entire amount of the balance of cash entrusted to him amounts to criminal breach of trust.[ciii] If a public servant in his capacity as such receives money on a certain date and does not include it in his cash balance entered in the register which he is required to maintain, there is very strong prima facie evidence of the money having been misappropriated on that date and he is guilty of embezzlement if he does not hand over to his successor the money in his hands due to Government.[civ] Mere retention of goods by a person without misappropriation does not constitute criminal breach of trust.[cv]

A user of property comes within this definition when such user causes substantial or appreciable loss to the owner of the property or gain to the accused. The use by a printer of certain blocks entrusted to him to print the complainant's catalogue for the purpose of printing a rival firm's catalogue amounts to criminal breach of trust.[cvi] The Madras High Court has, however, held that for either wrongful loss or gain the property must be lost to the owner or the owner must be wrongfully kept out of it. The deterioration of an article, such as a turban, by use on the part of the person to whom it is pledged, is not such a loss of property to its owner and such a gain to the pledgee as to amount to this offence.[cvii]

Where a retired employee of a company wrongly occupied the Company quarters for more than 18 years, dismissal of complaint under Section 630 Companies Act, 1956 and S. 406 IPC on technical grounds by the magistrate is held untenable.[cviii] The complaint does not contain the averment that Rs. 5 lakhs was entrusted to the appellant, either in his personal capacity or as the Chairman of MSEB and that he misappropriated it for his own use. The said amount was deposited by the complainant company with MSEB and there is nothing in the complaint which may even remotely suggest that the complainant had entrusted any property to appellant or that the appellant had dominion over the said money of the complainant, which was converted by him to his own use, so as to satisfy the ingredients of Section 405 IPC. Proceedings quashed.[cix] There is nothing in the complaint which may even suggest remotely that IEL had entrusted any property to the appellants or that the appellant had dominion over any of the properties of IEL, which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC punishable under section 406 IPC. Proceedings quashed.[cx] In view of the details and materials available on record, at this stage, it cannot be said that the case has been instituted maliciously or with ill-intention of causing harassment to the applicants and it also cannot be assumed at this stage that the complainant aims to abuse of process of law or that there are no ingredients or elements of criminal offence.[cxi] The complaint disclosed that certain gold and silver articles were entrusted to the accused and the particulars of the articles which has not been returned by the accused are clearly stated in the complaint. It cannot be said that prima facie no offence made out against the accused. Proceedings cannot be quashed.[cxii] Allegation is that mother-in-law entrusted her gold armaments to accused/daughter-in-law to keep in her safe custody, contrary to the averments in the complaint which states that she had given her gold ornaments to her son to keep them in his safe custody and her son handed over the same to accused/his wife. Son of complainant had instructed the accused not to handover the said ornaments to complainant. It was held that legal custody of ornaments was with son of complainant though actual custody was with accused. Acquittal of accused daughter-in-law is held proper.[cxiii]

Where an Income-tax raid could not be completed on the same day and the raiding team put the seized jewelry in an almirah which was locked and sealed but left with the accused, the latter was held guilty of this offence because he removed some articles by cutting open the almirah.[cxiv]

Where the complainant entrusted some gold to the accused for being sold and the accused neither returned the gold nor the sale proceeds thereof to the complainant, it was held that an offence under this section was committed.[cxv] Where the accused took a jeep on loan for a specific purpose and for a particular period but refused to return it on demand by the complainant after the purpose had been served and the stipulated period was long over, it was held that there was a prima facie case of criminal breach of trust and as such the complaint could not be thrown out.[cxvi] Certain departmental materials were supplied to the accused for execution of works. Recitals in the agreement established the fact of entrustment. It was not a sale transaction. The court said that the mere pendency of arbitration proceedings or availability of a civil remedy could not be a ground for discharging the petitioner.[cxvii]

04.  The accused must dishonestly use or dispose of that property or wilfully suffer any other person to do so in violation

(a)        of any direction of law prescribing the mode in which such trust is to be discharged, or;

Under section 409 of IPC, the entrustment of property or dominion should be in the capacity of accused as a public servant or in the way of his business as a banker, broker or merchant etc. The entrustment should have the nexus to the office held by the public servant as a public servant. Only then this section will apply. The accused, a public servant in his capacity in Pakistan unit of Hindustan Co-operative Insurance Society in Calcutta which was a unit of LIC, although not authorized to do so directly realized premiums in cash of some Pakistani policy holders and misappropriated the amounts after making false entries in the relevant registers.  To constitute an offence of Criminal Breach of trust by a public servant punishable under s 409 IPC, the acquisition of dominion or control over the property must also be in the capacity of a public servant.[cxviii] The section does not require that the trust should be in furtherance of any lawful object. Offences committed by trustees with regard to trust property fall within the purview of this section. Negligence or other misconduct causing the loss of trust proper may make the person entrusted civilly responsible, but will not make him guilty of criminal breach of trust.

The criminal breach of trust would, inter alia mean using or disposing of the property by a person who is entrusted with or has otherwise dominion thereover. Such an act must not only be done dishonestly, but also to the violation of any direction of law or any contract express or implied relating to carrying out the trust. A direction of law need not be a law made by the Parliament or a Legislature; it may be made by an authority having the power therefor; the law could be a subordinate legislation, a notification or even a custom.[cxix] It has been held that the expression "direction of law", even if taken literally, would include a direction issued by authorities in exercise of their statutory power as also power of supervision. Failure on the part of bank officials to follow RBI instructions and provisions of a Departmental Manual was a violation of a direction of law amounting to criminal breach of trust. The Manual was the UCO Bank Manual of Instructions on Bill Discounting.[cxx]

It has been held that the expression "direction of law" in S. 405 includes banking norms, practices and directions given in internal Departmental instructions of a bank. Bank officials who allowed advance credits on banker's cheques to a customer in violation of Departmental instructions acted in violation of direction of law. The officials had dominion over the money belonging to the bank and they dishonestly used that money for conferring a benefit on the customer. They were held guilty of the offence under the section.[cxxi]

Partnership:- The words of the section are wide enough to include the case of a partner, if it be proved that he was in fact entrusted with the partnership property, or with a dominion over it, and has dishonestly misappropriated it or converted it to his own use.[cxxii] This decision has been clarified in a subsequent case in which it is held that a partner who receives money on behalf of the partnership does not receive in a fiduciary capacity and a partner holding partnership property is not holding it in a fiduciary capacity. Each partner is co-owner of the whole of the common stock, and it is difficult to conceive how he can be entrusted with, or have dominion over, his own property or how he can dishonestly misappropriate it or convert it to his own use.[cxxiii] The share of any partner in the partnership assets cannot be predicted until an account has been taken and all the debts have been discharged. The only remedy of a co-partner is an account. Even after dissolution, a partner has no right to sue for his share of the assets, until the taking of amount. Each partner must be regarded as having a right to the whole of partnership property and no partner holds such property in a fiduciary capacity.[cxxiv] In Velji Raghavji[cxxv] Supreme Court approved this statement of law in Bhuban Mohan Rana v. Surendra Mohan Das, and held that mere existence of the accused's dominion over property is not enough and that it must be further shown that his dominion was the result of entrustment. According to the Supreme Court the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused partner. Where the partner of a firm had taken away some VCRs and cassettes, a criminal complaint was not allowed, the loss to the firm being essentially of civil nature and, therefore, civil proceedings would have been more appropriate.[cxxvi] Signing of contracts on behalf of the firm particularly when the partnership deed authorized partners to sign documents on behalf of others was held to be not constituting a criminal breach of trust.[cxxvii]

Company:- The accused was the director of a public limited company and in that capacity he misappropriated a huge sum of money. In the complaint against him the charge was made out under Section 409. However, the charge was framed under S. 408. It was held that the accused was a nominated director of the company and there was nothing to indicate that he was an employee or servant of the company. Hence, his conviction under S. 408 was not to be legally sound. He was convicted under S. 406.[cxxviii] The directors of a company were prosecuted for non-deposit of PF amount of employees. It was held that directors are not in the position of the principal employer. They could not be prosecuted as there was no entrustment of the amount to them in terms of S. 405, Explanation 1.[cxxix] The offence alleged in the criminal complaint filed by respondent is under S. 405 and S. 420 IPC whereunder no specific liability is imposed on the officers of the company, if the alleged offence is by the Company. In the absence of specific details about the same, no person other than Company can be prosecuted under the alleged complaint.[cxxx] The complainant was the wholesale dealer of the company. His dealership was terminated. Even so he sent a demand draft to the company for supply of goods. He did so because his dealership was subsequently reinstated by the company. The proprietor of the dealer firm filed a complaint alleged offence by the company because neither it supplied the goods nor returned the money. The company's application for quashing the complaint was rejected because the offence was prima facie made out. The Supreme Court said that only the company could be made liable but not its managing director or any other employee. The Supreme Court reversed the order of the High Court. Costs and compensation of harassment was quantified at Rs.1,00,000/-.[cxxxi]

Husband and Wife:- A woman has a joint possession of her husband's property and cannot, therefore, be indicted for disposing of it in any way.[cxxxii] This appears to be too broadly stated and may not be always correct in the context of the Indian Law. The Supreme Court has held that reading this section with Ss. 4 and 6 of the Dowry Prohibition Act, 1961, marriage gifts and ornaments received from in-laws must be handed over to the wife on being driven out and a failure to do so, would amount to an offence under this section.[cxxxiii] In an allegation by the husband that his wife had withdrawn certain amount from their joint account after her remarriage in conspiracy with the second husband and her father, it was found that the amount was withdrawn prior to her second marriage. It was held that no offence was made out under sections 406 and 420.[cxxxiv] Where the wife was turned out of the house by the husband who refused to return the ‘sthridhan’ despite repeated requests and persuasions, it was held that criminal breach of trust is a continuing offence and fresh cause of action accrues to the wife till the return of the property.[cxxxv] It has been held that taking away by the mother-in-law of gifts and cash offerings to the wife at the time of her marriage amounts to misappropriation of stridhan. It was further held that offering of 25 lakh rupees for grant of divorce by mutual consent as compensation to the complainant did not per se constitute any offence under the section. Any gift made to the bridegroom or her parents, whether in accordance with any custom or law also did not constitute an offence under the section. The proceedings were directed to be continued only against the mother-in-law.[cxxxvi]

In Criminal Misc. No. 4982-M of 1977, in which a learned Single Judge of this Court had taken the view that non-return of dowry items is not an offence which can be said to have been committed on a particular date only. It was held that in fact it was a continuing offence and as long as the dowry items were not returned, the offence continued. The learned Judge also pointed out that under Section 472 of the Code, a fresh period of limitation begins to run at every moment of time during which the offence continues.[cxxxvii]

Default in refunding share application money:- A person, who makes a public issue for inviting applications for shares and who becomes liable to refund the share application money because of refusal by a stock exchange to approve his securities and fails to refund the money, can be prosecuted for criminal breach of trust.[cxxxviii]

Recovery of stolen property:- In a case of cheating and receiving stolen property the magistrate took cognizance of the offence simply because the subject matter was found within the premises of the accused and he was taken to be a recipient of stolen property. The complaint was devoid of essential ingredients of the offence and no prima facie case was made out against the accused. The order of the magistrate taking cognizance was quashed.[cxxxix]

Disputed claims:- A person cannot be convicted of criminal breach of trust for refusing to give to the complainant money, which is claimed by another person as well as by the complainant, and which that person denies is due to the complainant.[cxl]

(b)        of any legal contract made touching the discharge of such trust

When the dispute in question is purely of civil nature, Magistrate is justified in dismissing the complaint U/S 203 Cr.P.C.[cxli] Merely because a civil claim has been raised by the complainant regarding the breach of agreement, it cannot prevent him from initiating criminal proceedings.[cxlii]

This offence consists of anyone of four positive acts, namely, misappropriation, conversion, use, or disposal of property. Neither failure to account nor breach of contract however dishonest, is actually and by itself the offence of criminal breach of trust.[cxliii] Sufferance of any loss by the victim is not necessary for leading to a conviction under the section.[cxliv]

It is abundantly clear from Rule 238, procedure for maintaining the accounts and Rule 245 of the C.P.W.A. Code that the contractors are charged for the materials supplied to them by way of deduction from the bills and that the property in the materials passes to the contractors immediately after their delivery to them. As such, the petitioner was the owner of the materials supplied to him and he could not be said to have committed either criminal breach of trust or criminal misappropriation of his own property.[cxlv]

Pledgee:- A person who pledges what is pledged to him may be guilty of this offence.[cxlvi] The accused, in the regular course of his money-lending business, effected sub-pledges of the same jewels, for the same amounts and on the same dates as the pledges made to him, with his financiers or khatadars to raise capital at a lower rate of interest. There was no express contract taking away the right to make sub-pledges and there was no evidence to show that the sub-pledges were made with a dishonest intention. It was held (1) that the accused was not guilty of criminal breach of trust; (2) that even if the accused had no right to make the sub-pledge, he must be deemed to have acted honestly under a mistaken belief as to the extent of his right as pledgee, and the sub-pledges of the pledged goods could not, in the circumstances, be regarded as amounting to criminal breach of trust.[cxlvii] A pledgee can retain possession until all the dues coming under the agreement are cleared and, if he is a bailee who has a general lien, until the whole of the amount between the parties is cleared, and he does not thereby commit any breach of trust.[cxlviii] But where, in derogation of the statutory requirement of giving reasonable notice before disposing of the articles pledged, the pledgee sells them and the price obtained is also not commensurate with the real value of the goods, the Delhi High Court expressed the opinion that it may amount to criminal breach of trust.[cxlix]

Hire-purchase:- When hirer himself committed default by not paying the installments and under the agreement, the appellants have repossesed the vehicle, the respondent-hirer cannot have any grievance as the vital element of 'dishonest intention’ is lacking. The element of 'dishonest intention' which is an essential element to constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer.[cl] The opposite party No.2 had entered into a hire purchase agreement with the petitioner whereby the petitioner had advanced Rupees one Lakh to him which was to be repaid in 18 equal installments. On default of payment the vehicle was repossessed by the petitioner. If the vehicle has been repossessed, there would not be any commission of the offence under S. 406 of the Indian Penal Code as under the agreement, the petitioner would be the owner until the entire payment is made. In that view of the matter and also in view of the terms of the hire purchase agreement that the petitioner being financier would be the owner of the vehicle until the entire payment is made, the petitioner cannot be said to have committed offence under S. 406 of the Indian Penal Code.[cli] Where a person to whom a truck was delivered under hire-purchase scheme, altered the identity of the vehicle by tampering with numbers, it was held that an offence under S. 406 was made out. The accused was convicted to 4 years rigorous imprisonment.[clii]

Fraud by Housing Society:- Where the complainant who was a member of a housing society which allotted him a plot measuring 3600 sq. ft. and the complainant paid the value of the plot in instalments but the society handed over to the complainant a sale deed for 1800 sq. ft. only, it was held that though a civil remedy was available, yet the criminal court could not be prevented from taking cognizance of the offence under section 405.[cliii]

Money saving scheme:- The petitioner was running money saving scheme. He used to collect money from the members for different committees and disbursement to them. The disbursement was stopped because of non-payment by members of the amount due. It was held that there was no dishonest intention to misappropriate money and offence under sections 406 and 420 were not made out.[cliv]

Re-payment of loan:- Where the accused sold machinery and goods which had been hypothecated to bank and the amount not paid to bank for repayment of loan, Court held that dispute in question is of civil nature and the trial court justified in dismissing complaint under S. 203.[clv]

Legal contract express or implied:- Violation of a contract in order to amount to criminal breach of trust has to be in respect of a legal or valid contract, and not one for a criminal purpose, e.g., purchase of stolen property, etc.[clvi]

Refusal to return in general:- A mere refusal to return the property entrusted does not constitute the offence of criminal breach of trust.[clvii]

Violation of legal contract:- The accused hired a motor-car of the complainant company under a hire-purchase system, which provided that until the car was fully paid for by the accused the car was to remain the "absolute property of the company” and the accused agreed during the hiring "not to assign, underlet or part with the possession” of the car in any way. Whilst the agreement was in force the accused pledged the car to three different persons on three different occasions. It was held that the accused was guilty of criminal breach of trust as the pledging of the car by him was a violation of the legal contract made by him in regard to the hire of the car and that violation amounted to dishonesty.[clviii] In a similar case where the accused sold a motor-lorry hired under a “hire purchase agreement", the Allahabad High Court held that he was guilty under this section.[clix] But where there is a mere breach of the contract terms, such as default in payment of an instalment, a liability of civil nature only would arise.[clx] Where a person takes goods on approval under an agreement that property therein was to pass only if he exercised his option to take them and paid cash in full for certain articles and in part for others, the trust continues till the option is exercised and cash payments made, and he commits criminal breach of trust if he sells them without such payment.[clxi] Where a contractor was given cement for construction work by the Minor Irrigation Department, Government of Bihar under a specific agreement that he would return unused cement but instead of doing so he sold the cement to outsiders, it was held a fiduciary relationship had been clearly established in the instant case and the contractor was liable to be convicted under s. 406, I.P.C..[clxii]

Illegal gratification:- The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit. In this case, it is not disputed that if the sum of Rs.23,100/- was paid by PW I to the appellant by way of illegal gratification to induce the latter to make an allotment of cloth in his favour, there could be no question of entrustment in such payment. The payee would then receive the money on his own behalf and not on behalf of or in trust for anybody else. The criminality of an act of this character would consist in illegal receipt of the money and the question of subsequent misappropriation of conversion of the same would not arise at all.[clxiii]

Acting contrary to directions of person entrusting money:- One of the accused persons, a registered stock broker, purchased mutual fund securities in the name of a bank and later on sold them. The sale was contrary to the terms subject to which securities were issued (sale before completion of lock-in period). But otherwise there was no violation of any statutory provisions. Neither the name lending bank nor the issuing institution objected to the sale. It was held that the accused was the real owner of the securities. There was no breach of trust on his part because the property sold was his own. The securities were purchased by another financial institution and the other accused was an officer of that institution. He was also acquitted of similar charges. He could not be convicted under the Prevention of Corruption Act, 1988 for the reason that purchase of securities to the tune of 33 crores could not have been done without authorisation from higher authorities. The transaction was also legal.[clxiv]

Civil wrong when becomes crime:- A distinction must be made between a civil wrong and a criminal wrong. When dispute between the parties constitute only a civil wrong and not a criminal wrong, the Courts would not permit a person to be harassed although no case for taking cognizance of the offence has been made out.[clxv]

05. The property may be movable or immovable

The definition in a 405 does not restrict the property to movables or immoveable alone. The word 'property' is used in the Code in a much wider sense than the expression 'moveable property'. There is no good reason to restrict the meaning of the word 'property' to moveable property only, when it is used without any qualification in s 405. Whether the offence defined in a particular section of IPC can be committed in respect of any particular kind of property, will depend not on the interpretation of the word 'property' but on the fact whether that particular kind of property can be subject to the acts covered by that section.[clxvi]

Even failure to handover marriage gifts and ornaments received from in laws to the wife on being driven out amounts to criminal breach of trust.[clxvii] Taking away such gifts and cash offerings from her by in laws also amounts to misappropriation. Gifts in cash or kind which are customarily given at the time of engagement, tilak or marriage ceremony cannot be regarded as an entrustment of items of dowry. No complaint can be presented against the donee in respect of such customary practices.[clxviii]

Where a person authorized to collect, delegates his functions to a subordinate of his and the latter acts in exercise of such delegated authority, any amount that is paid to him would constitute 'entrustment' within the meaning of S. 405.[clxix]

The word 'property' is used in the Code in a much wider sense than the expression 'movable property'. There is no good reason to restrict the meaning of the word 'property' to movable property only when it is used without any qualification in this section or other sections of the Penal Code.[clxx] The offence of criminal breach of trust is committed not only by dishonest conversion, but also by dishonest use or disposition and there is nothing in the wording of this section to exempt from the definition of criminal breach of trust dishonest use of immovable property by the person entrusted with dominion over it.

A cancelled cheque comes within the term 'property'.[clxxi] The word 'property' includes the sale proceeds of goods entrusted to the accused.[clxxii]

The property in respect of which an offence of criminal breach of trust may be committed must be property which belonged to the complainant. Provided there is entrustment of property, it matters little whether the complainant on whose behalf the property is entrusted is the owner thereof or not.[clxxiii]

Where it is the duty of a Municipal Water Works Inspector to supervise and check the distribution of water from the Municipal Water Works, he has dominion over the water belonging to his employers. If he deliberately misappropriates such water for his own use or for the use of his tenants for which he pays no tax and gives no information to his employers he is guilty of criminal breach of trust.[clxxiv]

06. The degree of punishments vary according to persons involved

Criminal Breach of Trust by ordinary persons

According to Section 406 of IPC, 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.

The acts of misappropriation or breach of trust done by strangers is treated less harshly than acts of misappropriation or breach of trust who enjoy special trust and are also in a position to be privy to a lot of information or authority or on account of the status enjoyed by them, say as in case of a public servant. That is why sections 407 & 408 provide for enhanced punishment of punishment up to seven years in case of commission of offence of criminal breach of trust by persons entrusted with property as a carrier or warehouse-keeper.

Criminal breach of trust by carrier, etc

According to Section 407, whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Criminal breach of trust by clerk or servant

According to Section 408, whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Criminal Breach of Trust by a Public Servant, Banker, Merchant or Agent

According to Section 409, whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits breach of trust in respect of that property, shall be punished with [clxxv][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

In respect of public servants a more stringent punishment of life imprisonment or imprisonment up to ten years with fine provided. This is because of the special status and the trust which a public servant enjoys in the eyes of public as a representative of the government or government owned enterprises.

The persons having fiduciary relationship between themselves have a greater responsibility for honesty as they have more control over the property entrusted to them, due to their social relationship. A mere carelessness to observe the rules of treasury ipso facto cannot make one guilty of criminal breach of trust. There must be something more than carelessness, i.e., there should be dishonest intention to keep the government out of moneys.[clxxvi] Where under the rules, a public servant is required to lodge in the treasury any government by the registers in his hands and the public servant removes the excess from the office cash book, he is guilty of misappropriation.[clxxvii]

Moneys paid to Post Master for money order are public money; as soon as they are paid they cease to be the property of the remitters and a misappropriation of such moneys will fall under this section.[clxxviii] It is not necessary under the section that the property in respect of which the offence is committed must be shown to property of the State.

An employee of the Indian Airlines, who took excess money from the passengers and pocketed the same by falsifying reports, was held guilty under s 409 and the Prevention of Corruption Act, 1947.[clxxix]

The prosecution dealing with cases of criminal breach of trust by a public servant is required to prove not only that the accused was a public servant but also was in a capacity entrusted with property or with domination over the same and he committed breach of trust in respect of that property.[clxxx]

It is not necessary that the property entrusted to a public servant should be of government. But what is important is that, the property should have been entrusted to a person in his capacity as a public servant.[clxxxi]

05. COMPARISION BETWEEN CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST

On a comparative study of Criminal Misappropriation of Property under Sections 403 and 404 and namely Dishonest Misappropriation of Property and Criminal Breach of Trust under Section 405 various similarities and differences are noticed. These offences also have some similarities with Section 378 Theft.

01. Criminal Misappropriation and Theft under Indian Penal Code

The main noticeable elements of provisions of criminal misappropriation and theft are

(1) In theft the offender dishonestly takes property which is in the possession of a person out of that person's possession; and the offence is complete as soon as the offender moves the property. Criminal misappropriation takes place even 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.

(2) The dishonest intention to appropriate the property of another is common to theft and to criminal misappropriation. But this intention, which in theft is sufficiently manifested by a moving of the property, must in criminal misappropriation be carried into action by an actual misappropriation or conversion.

02. Similarities and differences between Criminal Misappropriation and Criminal Breach of Trust

The main similarities and differences between criminal misappropriation of property and criminal breach of trust are described under the following heads.

01. Mens Rea

The Mens Rea element of Dishonest Misappropriation or conversion is common in both criminal misappropriation of property and criminal breach of trust. Even though the Mens Rea element of dishonesty is similar in criminal misappropriation of property and criminal breach of trust, Section 404 stipulates a knowledge of the ownership of the deceased over the property misappropriated or converted. Section 405 two more Mens Rea elements as necessary for the offence, namely; 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 the accused has made touching the discharge of such trust, or willfully suffers any other person so to do.

02. Actus Reus

The Actus Rea of “misappropriates or converts to his own use” any property is common to criminal misappropriation of property and criminal breach of trust.  The Actus Rea in criminal breach of trust, in addition to those of criminal misappropriation of property also also covers the provision “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”.

03. The property

Criminal misappropriation of property as per Sections 403 and 404 involves movables property alone. The definition in Section 405 criminal breach of trust does not restrict the property to movables or immoveable alone. The word 'property' is used in the Code in a much wider sense than the expression 'moveable property'.

04. The Possession and Entrustment

Under Sections 403 and 404, the possession of the movable property into the hands of the accused is caused by some casualty which itself need not be illegal in nature. There is no entrustment of the property with the accused. However, under Section 405, the accused has either been entrusted with the property or has dominion over such property. Under Section 403 and 404, the offence takes place at a later stage when the element of dishonest misappropriation or conversion for owns own use. Had the acquisition of possession been dishonest, the Section attractable may be 378 Theft. Under Section 405 also possession is legal, but the movable or immovable property is either dishonestly misappropriated or wilfully suffered any person so to do. Unlike in criminal misappropriation of property, the property is held by the accused in a fiduciary capacity in criminal breach of trust. The Supreme Court has reiterated that where a partner is entrusted with property under special contract and he holds that property in a fiduciary capacity, any misappropriation of that property would amount to criminal breach of trust.[clxxxii]

In the absence of any entrustment, no criminal misappropriation can be alleged.[clxxxiii]

05. The Ownership

The ownership of the property is relevant to establish an offence under Sections 403, 404 and 405 alike. It is settled law that a property without ownership cannot be misappropriated. Hence it is necessary to prove the ownership of the property for prosecution of the accused. It is also well settled that a person cannot misappropriate his own property. However, as in cases of goods in transit, or bailment criminal breach of trust may be charged once it is made out that the accused has come into the dominion of the property. In such cases the ownership need not be proved.

To constitute criminal breach of trust there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged. The ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit.[clxxxiv]

A partner has undefined ownership along with other partners over all the assets of the partnership. If he chooses to use any of them for his own purpose he may be accountable civilly to other partners. But he does not thereby commit any misappropriation. A partner may have dominion over the partnership property. But mere dominion is not enough. It must further be shown that his dominion was the result of entrustment. Thus to prosecute a partner the prosecution must establish that dominion over the assets or a particular asset of the partnership was by a special agreement between the parties, entrusted to the accused partner. If in the absence of such a special agreement a partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary capacity or in other words cannot be held to have been entrusted with dominion over partnership properties and without entrustment there cannot be any criminal breach trust.[clxxxv]

A trust is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.[clxxxvi] Hence, where there is no original confidence, there is no trust, and a misappropriation, if punishable at all, will be under S.403.

06. The Punishment

The punishment for dishonest criminal misappropriation of property under Section 403 is minor, i.e. imprisonment of either description for a term which may extend to two years, or with fine, or with both.

In the case of an offence under Section 404 Dishonest misappropriation of properly possessed by deceased person at the time of his death, the punishment for an ordinary offender is imprisonment of either description for a term which may extend to three years and 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.

In the case of an offence under Section 405, punishment is awarded to an ordinary offender under Section 406 for imprisonment of either description for a term which may extend to three years, or with fine, or with both. If the offender is entrusted with property as a carrier, wharfinger or warehouse-keeper, as per Section 407 punishment is imprisonment of either description for a term which may extend to seven years, and fine which is equal to the punishment awarded to a clerk or servant as per Section 404. But if a clerk or servant entrusted with property, or with any dominion over property, commits criminal breach of trust, as per Section 408, he shall be punished with the same punishment of imprisonment of either description for a term which may extend to seven years, and fine. As per Section 409, if criminal breach of trust is committed by a person in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, he shall be punished with [clxxxvii][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Thus it is evident that the gravity of the offence of dishonest misappropriation of property under Section 403 is lesser than both the offences under Section 404 Dishonest misappropriation of properly possessed by deceased person at the time of his death and Section 405 criminal breach of trust.  The gravity of the offence increases according to the fiduciary status of the accused. Thus clerks and servants shall receive seven years imprisonment as per Sections 404 and 408. The same punishment is provided to a carrier, wharfinger or warehouse-keeper under Section 407. If criminal breach of trust is committed by a public servant in his official capacity or in the way of accused’s business as a banker, merchant, factor, broker, attorney or agent shall suffer the severest punishment under this classification.

Offences under Section 403, offences by ordinary offenders under Section 404 and offences under Section 406 are Non-Cognizable. Offences by clerk or servant under Section 404, and offences under Sections 407, 408 and 409 are Cognizable. Offences under Sections 403, 404 and 406 are Bailable. Offences under Sections 407, 408 and 409 are Non-Bailable. Offences under Section 403 are triable by an ordinary Magistrate and Offences under Sections 404, 406, 407,408 and 409 are triable by a Magistrate of First Class only. Offences under Section 403, 406, 407 and 408 are Compoundable by the owner of the property misappropriated with the permission of the court and Offences under Sections 404 and 409 are Non-compoundable.

07. The Prosecution

In a case of criminal breach of trust it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. An intention wrongfully to deprive the owner of the use of the property for a time and to secure the use of the property for his own benefit for a time may be sufficient.[clxxxviii]

Misappropriation of gold ornaments and money realised by the accused from the debtors of his deceased master was not held to be criminal misappropriation within the meaning of Section 403 of the Indian Penal Code.[clxxxix]

In a case of criminal misappropriation the prosecution need not prove the actual mode of misappropriation. They have, however, to prove dishonest misappropriation. It is incorrect to say that once the prosecution has proved that the accused has received money on account of another and is unable to show from his account that he has used it properly, the conclusion must be that he has misappropriated the money.[cxc]

The receipt of compensation money by the accused therein, in respect of the lands mortgaged by him to one Banerji (mortgagee) with whom he had entered into an agreement that the compensation money would first be applied towards satisfaction of the mortgage loan, and keeping the same for his own utility and refusing to pay to the mortgagee, was not held to amount to criminal misappropriation within the meaning of Section 403 of the Indian Penal Code.[cxci]

It was held that a person who is the manager of a firm cannot be held criminally liable for breach of trust where there is no personal entrustment of good to him but to the firm in respect of which the offence was alleged to have been committed. ……. It has to be seen in the circumstances of the present case whether the petitioner committed any offence of criminal misappropriation under Section 403, Penal Code.[cxcii]

In a case of criminal breach of trust failure to give a satisfactory explanation on the part of the accused should not be regarded as sufficient to justify his conviction.[cxciii]

Explanation 1 to Section 403 of the Indian Penal Code The burden of proving the offence of criminal misappropriation against the accused is undoubtedly on the complainant or the prosecution.[cxciv]

Where the property in question has come to the possession of the accused by virtue of his being the heir of his grandfather and hence he is entitled to enjoy the same subject to the rights of the complainant and others that may be adjudicated in the civil suit now pending before the Civil Court. There is absolutely no chance or material to make the accused liable for criminal misappropriation.[cxcv]

The Court did not accept the argument that criminal misappropriation cannot be committed if the accused had a dishonest intention at the time of taking possession of the article. The complainant has the choice; if he thinks that he can make out a case of dishonest intention while taking delivery of the article he can charge the accused with cheating; otherwise he is entitled to charge him with criminal misappropriation.[cxcvi]

After having considered the entire case in its proper perspective, Delhi High Court finds no hesitation to put it on record that the modus operandi adopted by petitioners in taking control of AJL via Special Purpose Vehicle i.e. Y.I., particularly, when the main persons in Congress Party, AJL and Y.I. are the same, evidences a criminal intent. Whether it is cheating, criminal misappropriation or criminal breach of trust is not required to be spelt out at this nascent stage. In any case, by no stretch of imagination, it can be said that no case for summoning petitioners as accused in the complaint in question is made out. Questionable conduct of petitioners needs to be properly examined at the charge stage to find out the truth and so, these criminal proceedings cannot be thwarted at this initial stage.[cxcvii]

The offence of dishonest misappropriation defined in Section 403 or the offence of criminal breach of trust defined in Section 405, I.P.C. is not a continuing offence because such offence, by definition, takes place where an act is committed once and for all.[cxcviii]

Sanction for Prosecution of Criminal Misappropriation of Property and Criminal Breach of Trust:- On the facts of the present case, the alleged act of criminal misappropriation complained of was not committed by them while they were acting or purporting to act in the discharge of their official duty, the commission of the offence having no direct connection or inseparable link with their duties as public servant. At the most, the official status of the appellants furnished them with an opportunity or occasion to commit the alleged criminal act. Sanction of the appropriate Government was therefore not necessary for the protection of the appellants for an offence under section 409/120B Indian Penal Code.[cxcix] 

Where a person takes the property of another believing in good faith that such property belongs to him, he is not guilty of theft or criminal misappropriation. But, however, after coming to know that the property really belongs to another and he is not the owner, and dishonestly misappropriates or converts it to his own use, he must be held to be guilty of criminal misappropriation of that property. Even temporary dishonest misappropriation amounts to criminal misappropriation within the meaning of Section 403 of the Indian Penal Code.[cc]

Whether sanction is necessary to prosecute a public servant on a charge of criminal misappropriation, will depend on whether the acts complained of hinge on his duties as a public servant. If they do, then sanction is requisite. But if they are unconnected with such duties, then no sanction is necessary. [cci]

Sanction for prosecution is not necessary if a public servant is charged for offence of entering into a criminal conspiracy for committing breach of trust.[ccii]

08. The Criminal Procedure

If the prisoner in a case of criminal breach of trust gives an explanation which may reasonably be true, even though it is not believed by the Judge or the jury, he or they must acquit the accused because in such circumstances the onus of proving the guilt of the accused must be deemed not to have been discharged.[cciii]

The verification of stock made by the Sub-divisional Officer and his subordinates was faulty to a degree and should not be relied on. There is no evidence of criminal misappropriation. The petitioner admitted his civil liability in the matter and was ever ready to indemnify Government. The trial was bad because the charge was in respect of a total quantity alleged to have been misappropriated during a certain period.[cciv]

The Government rice was entrust to the "firm" of which the petitioner and his younger brother were the proprietors. Technically speaking, there was no entrustment to the petitioner personally. I have, however, no reasonable doubt in my mind that the petitioner committed criminal misappropriation of the rice which was the subject-matter of the charge against him. The offence, thus, does not come under Section 409, but it comes under Section 403, Penal Code.[ccv]

In cases where there be no case against the accused and further prolongation of the prosecution would amount to harassment and abuse of the process of the Court, it is the duty of the High Court to interfere under Section 531-A, Criminal P. C. and put an end to the abuse. Section181 clause (2) of Cr.P.C. which specifically provides as to where cases of criminal breach of trust are to be tried and that Section reads thus:

"The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused persons, or the offence was committed."[ccvi]

Although loss to the principal or employer may be usual and normal result of criminal breach of trust ... it is neither the necessary ingredient nor even the necessary consequence of the criminal breach of trust. It is the act itself which in law amounts to the offence apart from, any such consequence and therefore the jurisdiction to try offences of criminal misappropriation or criminal breach of trust is governed by Section 131(2) and not by Section 179.[ccvii]

Where there is only a liability to account at a certain place and no duty to deliver any property at that place, the criminal court at the place where the accounting is to be done has no jurisdiction to try an offence under Section 409, I. P. C. The mere liability to account is not sufficient to confer jurisdiction upon the place where the accounting is to be done.[ccviii]

So far as the trial under Sections 406, 408 and 409, I. P. C. is concerned, the Bareilly court has no jurisdiction and as regards the charge under Section 420, I am of opinion that it will not be in the public interest to allow a prolonged criminal trial for purely civil claim. Therefore, Court quashed the criminal proceedings pending in the court of the Judicial Magistrate, at Bareilly against the petitioners.[ccix]

A government servant realized money from cultivators falsely representing to them that it was due from them as government dues and misappropriated it; Court held, that he was guilty under Section 420 Cheating and dishonestly inducing delivery of property and not of criminal breach at trust.[ccx]

The offence of criminal misappropriation or of criminal breach of trust may be inquired into or tried by a Court within the local limits of whose jurisdiction any part of the property which is the subject of the offence was received or retained by the accused or the offence was committed.[ccxi]

A joinder of charges for criminal breach of trust or dishonest misappropriation can be made only when they relate to money and not materials. The word used is "money". Sub-section (2) of Section 222 does not permit joinder of charges regarding properties even if they have any money value.[ccxii]

Criminal Misappropriation, Criminal Breach of Trust and Disciplinary Action:-  Misappropriation of the funds would be a failure to maintain absolute integrity in the first place. Secondly, it would expose an employee as a person behaving in a manner unbecoming of such an employee or derogatory to the prestige of the Government (Judiciary). Ultimately, such a conduct would place such an employee in his official position under a peril of embarrassment. Read in that context, misappropriation would be a clear misconduct within such a rule. It appears that the meaning and consequence of misappropriation is borrowed from an offence in Law of Crimes. Similar is the case in regard to criminal breach of trust. All the implications of such offences covered by Sections 403 to 409 of the Indian Penal Code appears to have been borrowed and accepted in administrative law in regard to such a misconduct. It appears that all the categories of misconduct are not defined and even which are defined in the Conduct Rules are said to be not exhaustive.[ccxiii]

Even without proving the misconduct of criminal misappropriation this was a fit case to impose the penalty of dismissal of the respondent from service. However, the procedure adopted in sending back the matter to the disciplinary authority namely, appellant No. 2 for reconsideration of the penalty to be imposed on the respondent appears to be correct in view of the clear dictum laid down in State Bank of India (8 supra). Even there, it must be impressed that even in regard to the nature of the penalty imposed in a disciplinary enquiry for good and sufficient reasons, the High Court will not interfere under Article 226 of the Constitution of India.[ccxiv]

Criminal Misappropriation, Criminal Breach of Trust and Companies Act:-  The mere fact that in certain cases some of the components of the offence punishable under Section 630 of the Companies Act may have some similarity with some of the components of an offence of criminal misappropriation or of criminal breach of trust do not qualify for attracting Section 181(4) of the Criminal Procedure Code, to a case under Section 630 of the Companies Act. I reiterate that Section 181(4) of the Criminal Procedure Code, by its own terms, applies only to an offence of criminal misappropriation or criminal breach of trust and not to any other offence.[ccxv]

06. CONCLUSION

The Subheads “Of Criminal Misappropriation of Property” and “Of Criminal Breach of Trust under Chapter XVII Of Offences against Property of Indian Penal Code defines a major area of economical and administrative crimes regarding property. Often these offences are charged together. Even when Changed under Criminal Breach of Trust, as per power vested by Section 222 (2) of Cr.P.C., accused may be punished under criminal misappropriation. The offences of Theft, Criminal Misappropriation, Criminal Breach of Trust, Stolen Property and Cheating under Indian Penal Code are interlinked and hence can be framed as per needs. However offences against property are generally regarded as less severe than offences against persons and offences against Governments.

The Present Indian Economic Offence Scenario has changed considerably. Offences and scandals to the tune of Lakhs of Crores of Rupees are heard every year. But the normal Punishment for Criminal Misappropriation is only for two years and for Criminal Breach of Trust is three years. Even the Law Commission has recommended to curtail the life imprisonment to 14 years imprisonment. When a person cannot earn one crore in his entire life, if he lives as a law abiding citizen, and if gets more if acts illegally, and the risk factor is two years imprisonment, or a little more, there may be many to take the risk, especially when the rate of acquittal in economic offences are more than the rate of conviction. This is also truer in the case of the rich people, than the backward and downtrodden classes.

Criminal Misappropriation and Criminal Breach of Trust have more things in common than the differences between them. Had there not been so much precedents, the difference would be narrower still. The main factor is the entrustment in breach of trust. Trust, as we know is the basic foundation of almost every financial and economical transaction in India. Thus the Judiciary is duty bound to keep this trust in tact in the society, not only to assist the society in its survival, but also for maintaining the trust of the people in judiciary and rule of law. The havocs as we see every day, the unrest of the people in general, and a majority of law and order problems arise out of economic issues of the time being.

Hence studies on topics similar to this study are most relevant in all aspects.

As far as the main differences between Criminal Misappropriation and Criminal Breach of Trust are concerned, the following table may serve helpful, but they are not exhaustive as explained earlier.

Point of difference	criminal misappropriation of property	criminal breach of trust
Section	403 and 404	405, 406, 407, 408, 409
Acquisition of property	Property comes into the possession of the offender by some casualty and he afterwards misappropriates it.	Offender is lawfully entrusted with the property and he dishonestly misappropriates it or willfully suffers any person so to do.
Character of possession	There is no fiduciary relationship in this offence. The property comes into the possession of the offender any how	There is conversion of property held by a person in a fiduciary capacity.
Nature of possession	It must be of movable property.	Property may be movable or immovable.
Punishment	2 years+ fine	Minimum 3 years + fine and extended punishment for grave criminal breach of punishment i.e. maximum imprisonment for life or with imprisonment of either description for a term which may extend to ten years + fine.

APPENDICISES

APPENDIX I A Table of the relevant classification of offences under Cr.P.C. (Criminal Misappropriation and Criminal Breach of Trust only)

Section	Cognizable	Bailable	Triable by	Compoundable
403	Non-cognizable	Bailable	Magistrate	by the owner of the property misappropriated with the permission of the court
404 (by ordinary)	Non-Cognizable	Bailable	Magistrate of the first class	Non-compoundable
404 (by clerk or servant)	Cognizable	Bailable	Magistrate of the first class	Non-compoundable
406	Non-cognizable	Bailable	Magistrate of the first class	Compoundable by the owner of the property
407	Cognizable	Non-bailable	Magistrate of the first class	Compoundable by the owner of the property
408	Cognizable	Non-bailable	Magistrate of the first class	Compoundable by the owner of the property
409	Cognizable	Non-bailable	Magistrate of the first class	Non-compoundable

 BIBLIOGRAPHY

1.    Ratanlal and Dhirajlal The Indian Penal Code, by Justice K.T. Thomas and M.A. Rashid, published by Lexis Nexis, 34^th Edition, 4^th Reprint (Sept), 2015

2.    Indian Penal Code, by B.M. Gandhi, Published by Eastern Book Company, Lucknow, Second Edition 2006

3.    D.L.H.’s Criminal Major Acts, by and published by Delhi Law House, First Edition, 1998

4.    The Indian Penal Code (Act XLV of 1860) with Notes, by W. Morgan and A.G. Macpherson, published by G.C. Hay & Co., Calcutta, 1863

5.    Investigation of Cases relating to Criminal Misappropriation and Criminal Breach of Trust, by K. Madhavan, Jt. Director (Retd), CBI, electronic version, https://industrialharmony.files.wordpress.com/2010/03/cbt.pdf

6.    https://en.wikipedia.org/

7.    https://indiankanoon.org/

8.    http://judis.nic.in/supremecourt/chejudis.asp

9.    http://judis.nic.in/judis_kerala/content.asp

10.  The Code of Criminal Procedure, 1973, Bare Act, electronic version.

NOTES

---

[i] https://en.wikipedia.org/wiki/Indian_Penal_Code

[ii] Ibid

[iii] Bhagiram Dome v. Abar Dome, (1988) 15 Cal 388,400; Pramode, (1965) 2 Cr LJ 562

[iv] Ramakrishna. (1888) 12 Mad 49, 50

[v] Mahadev Govind  (1930) 32 Bom LR 356

[vi] lndian Oil Corporation v. NEPC India Ltd. AIR 2006 SC 2780; (2006) 6 SCC 736; Ramaswamy Nadar v. The State of Madras, AIR 1958 SC 56; 1958 Cr LJ 228; Mohammed Ali v. State of M.P. 2006 Cr LJ 1368 (MP); Diamond Cables Ltd. v. State of Andhra Pradesh, 2004 Cr. L.J. 4100 (AP)

[vii] U. Dhar and Another v. State, AIR 2003 SC 974; (2003) 2 SCC 219

[viii] Ibid

[ix] Makhulshah (1886) 1 weir 470

[x] (1880) 1 Weir 453; Pania, (1881) 1 AWN 89

[xi] Abdool. (1868) 10 WR (Cr) 23 A

[xii] Phuman, (1907) PR.No. 11 of 1908

[xiii] Indar Singh (1925) 48 All. 288

[xiv] Bissessur Roy, (1869) 11 WR (Cr) 51

[xv] Ramakrishna, (1888) 12 Mad 49

[xvi] Mohammed Ali v. State of M.P. 2006 Cr LJ 1368 (MP)

[xvii] Venkatasami, (1890) 14 Mad 229

[xviii] Obayya, (1898) 22 Mad. 151

[xix] Raza Hussain, (1904) 25 AWN 9

[xx] Dinabandhu Banerjee v. Nandini Mukherjee, 1994 Cr LJ 422 (Cal)

[xxi] DPP v. Gomez, (1992) 3 WLR 1067 (HL)

[xxii] U. Dhar v. State of Jharkhand, AIR 2003 SC 974: 2003 Cr LJ 1224

[xxiii] Sita, (1893) 18 Bom 212

[xxiv] Mahadev Govind, (1930) 32 Bom LR 356

[xxv] Hakam Singh and Ors. v. The State Of Punjab and Anr. (1990) DMC 343, (1990) 97 PLR 21

[xxvi] Bandhu, (1885) 8 All. 51; Nihal, (1887) 9 All 348

[xxvii] Romesh Chunder Sannyal v. Hiru Mondal (1890) 17 Cal 852

[xxviii] Ram Dayal (1886) PR No. 24 of 1886

[xxix] Ram Dayal (1886) PR No. 24 of 1886

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

[xxxi] Shamsoondur (1870) 2 NWP 475

[xxxii] State of Maharashtra v. Mohan Radhakrishna Pednekar, 1998 Cr LJ 3771 (Bom)

[xxxiii] Parbutty Churan Chuckerbutty, (1870) 14 WR (Cr) 13

[xxxiv] (1880) 1 Weir 453; Pania, (1881) 1 AWN 89

[xxxv] Velji Raghavji. (1964) 67 Bom LR 443 (SC). Mahal Chand Sikwal v. State of West Bengal 1987 Cr. L.J. 1569 (Cal)

[xxxvi] M& M 364

[xxxvii] Prabhat Bhatnagar v. State & Ors, 2007 Cr LJ 4349 (Raj)

[xxxviii] Sathi Prasad, 1973 Cr LJ 344: AIR 1973 SC 448; See also State of Orissa v. Bishnu Charan Muduli, 1985 Cr LJ 1573 (Ori); Bhopa Sara Bharwad, 1986 Cr LJ 518 (Guj)

[xxxix] Turuku Budha Karkaria v. State, 1994 Cr LJ 552 (Ori)

[xl] Girdhar Dharamdas, (1869) 6 BHC (Cr C) 33

[xli] Dhulji v. Kanchan, AIR 1956 MB 49

[xlii] Daud Khan, (1925) 24 ALJR 153

[xliii] AIR 1989 SC 421: 1989 Cr LJ 968: 1989 Supp (1) SCC 74

[xliv] 1998 Cr LJ 3994 (Gauhati)

[xlv] See also Shobhau v. State of M. P., 1998 Cr LJ 3934 (MP)

[xlvi] Prabhat Bhatnagar v. State & Ors, 2007 Cr LJ 4349 (Raj)

[xlvii] Ballala Venkateswarlu v. State, 2005 Cr LJ 1577 (AP)

[xlviii] Sukhdeo Singh v. State of Rajasthan 2008 Cr LJ 611 (Raj)

[xlix] Gajraj v. State (NCT) of Delhi, (2011) 10 SCC 675: 2012 Cr LJ 413

[l] Munish Mubar v. State, 2013 Cr. LJ 56 (SC): AIR 2013 SC 912

[li] Prakash Alias Ajayan v. State, 2009 Cr LJ 2930 (Ker) Also see Ramesh v. State of Rajasthan (2011) 3 SCC 685

[lii] Inserted by Act 40 of 1973, sec.9 (w.e.f.1-11-1973)

[liii] Explanation renumbered as Explanation 1 by Act 38 of 1975, sec.9 (w.e.f. 1-9-1975)

[liv] Inserted by Act 33 of 1988, sec.27 (w.e.f.1-8-1988)

[lv] Inserted Act 38 of 1975, sec.9 (w.e.f. 1-9-1975)

[lvi] Substituted by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956)

[lvii] Sadhupati Nageswara Rao v. State of Andhra Pradesh (2012) 8 SCC 547: AIR 2012 SC 3242; Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660: (2011) I SCC (Cri) 85; Indian Oil Corpn. v. NEPC India Ltd. & Ors., (2006) 6 SCC 736; Pratibha Rani v. Suraj Kumar & Anr.(1985) 2 SCC 370; Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397; R. Venkatkrlshnan v. Central Bureau of Investigation, (2009) 11 SCC 737

[lviii] Onkar Nath Mishra v. State, (NCT of Delhi) (2008) 2 SCC 561: (2008) I SCC (Cri) 507

[lix] Common Cause v. Union of India, (1999) 6 SCC 667: 1999 SCC (Cri) 1196

[lx] V.P. Shrivastava v. Indian Explosives Limited (2010) 10 SCC 361 : (2010) 3 SCC (Cri) 1290; Jaswantrai Manilal Akhaney v. State of Bombay AIR 1956 SC 575: 1956 Cr LJ 1116

[lxi] Sudhir Shantilal Mehta v. C.B.!. (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646

[lxii] Krishan Kumar V Union of India AIR 1959 SC 1390

[lxiii] Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889

[lxiv] Surendra Prasad Verma v. State of Bihar AIR 1973 SC 488

[lxv] Ramdeo Singh v. State of Bihar 2013 Cr. L.J. 891 (Pat)

[lxvi] Adinarayana Iyer, (1907) 17 MLJ 413

[lxvii] R. Venkatkrishnan v. CBI (2009) 11 SCC 737. It made no difference to the criminal liability that the money was quickly recovered and Departmental action was taken against bank officials.

[lxviii] Sardar Singh, 1977 Cr LJ 1158: AIR 1977 SC 1766

[lxix] Jagroop Singh, 1980 Cr LJ 68 (P&H)

[lxx] Sudhir Shantilal Mehta v. CBl (2009) 8 SCC 1

[lxxi] Welch’s Case, (1846) I Den 199

[lxxii] Krishan Kumar, 1959 Cr. L.J. 1508 (SC): AIR 1959 SC 1390

[lxxiii] J.M. Desai, 1960 Cr. L.J. 1250: AIR 1960 SC 889; See also Bipin Chandra, 1964 (1) Cr. L.J. 688 (Ori)

[lxxiv] Kedarnath AIR 1965 All 233

[lxxv] Surendranath (1958) Cut 151

[lxxvi] Somnath Puri v State of Rajasthan (1972) 1 SCC 63

[lxxvii] State of Madhya Pradesh v Pramode Mategaonkar (1965) 2 CrLJ 562 (MP)

[lxxviii] State of Gujarat v. Jaswantlal Nathalal, 1968 AIR 700, 1968 SCR (2) 408

[lxxix] Jaswant Rai Manilal Akhaney v. State of Bombay, 1956 AIR 575, 1956 SCR 483

[lxxx] State of UP v. Babu Ram, 1961 AIR 751, 1961 SCR (2) 679

[lxxxi] Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397

[lxxxii] Shivnarayan v. State of Maharashtra, AIR 1980 SC 439, 1980 CriLJ 388, (1980) 2 SCC 465

[lxxxiii] Hakam Singh and Ors. v. The State Of Punjab and Anr. (1990) DMC 343, (1990) 97 PLR 21

[lxxxiv] Employees State Insurance Corporation v. S K Aggarwal 1998 (7) TMI 516 - SUPREME COURT OF INDIA - [1998] 94 COMP. CAS. 75 (SC), 1998 AIR 2676, 1998 (6) SCC 288, 1998 (5) JT 233, 1998 (4) SCALE 328

[lxxxv] Shivnatrayan v. State of Maharashtra AIR 1980 SC 439

[lxxxvi] Velji Raghavji Patel v. State of Maharashtra AIR 1965 SC 1433

[lxxxvii] Onkar Nath Mishra v. State (NCT) of Delhi, (2008) 2 SCC 561 : 2008 Cr LJ 1391

[lxxxviii] Satyendra Nath Mukherji, (1947) 1 Cal 97. This case was approved by THE Supreme Court in Jaswantlal, AIR 1968 SC 700 : 1968 Cr L.J 803. Dani Singh, AIR 1963 Pat. 52; Ram Niranjan (1964) 1 Cr L.J. 614

[lxxxix] Lake v. Simmons, (1927) AC 487. V.R. Dalal v. Yougendra Naranji Thakkar, (2008) 15 SCC 625: AIR 2008 SC 2793

[xc] Lake v. Simmons, (1927) AC 487

[xci] Jaswantlal, AIR 1968 SC 700: 1968 Cr LJ 803

[xcii] Thakarsi, (1949) Nag 620; Jaswantrai Akhaney, (1956) 58 Bom LR 1026 (SC)

[xciii] Kundan Tillumal, (1942) Kar 288

[xciv] Hitnarain v. Bednarain, (1944) 24 Pat 128; S.N. Palanitkar v. State of Bihar, AIR 2001 SC 2960 : 2001 Cr LJ 4765

[xcv] Rajendra Singh Lodha v. Arbindo Dey, 1997 Cr LJ 4613 (Cal)

[xcvi] C.L.Sagar v. Mayawati, 2003 Cr LJ 690 (All)

[xcvii] State of H.P. v. Karanvir 2006 Cr L.J. 2917: AIR 2006 SC 2211: (2006) 5 SCC 381

[xcviii] Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889

[xcix] Surendra Prasad Verma v. State of Bihar AIR 1973 SC 488, 1972 CriLJ 1202, (1972) 3 SCC 656, 1973 (5) UJ 20 SC

[c] Kesar Singh, 1969 Cr LJ 1595

[ci] Renukana v. Debjani, 1996 Cr LJ 2839 (Cal)

[cii] R. Venkatkrishnan v. CBI (2009) 11 SCC 737

[ciii] Hira Lal, (1907) PR No. 19 of 1908

[civ] Daya Shankar. (1926) 1 Luck 345

[cv] Nirmalabai, (1953) Nag 813

[cvi] Keshab Chandra Boral v. Nityanand Biswas (1901) 6 CWN 203

[cvii] (1866) 3 MHC (Appx) vi

[cviii] Automobile Products India Ltd. v. Das John Peter (2010) 12 SCC 593: (2011) 1 SCC (Cri) 768

[cix] Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660: (2011) 1 SCC (Cri) 85; Chandralekha v. State of Rajasthan JT 2012 (12) SC 390: 2012 (12) SCALE 692 - FIR filed after six years of the incident - Continuationof proceedings is an abuse of process of law - FIR quashed; Also see M.M. Prasad Khaitan v. R.G. Poddar (2010) 10 SCC673

[cx] V.P. Shrivastava v. Indian Explosives Limited [(2010) 10 SCC 361: (2010) 3 SCC (Cri) 1290; Joseph Salvaraj A. v. State of Gujarat, AIR 2011 SC 2258: (2011) 7 SCC 59; Udai Shankar Awasthi v. State of U.P. (2013) 2 SCC 435; 2013 (1) SCALE 212; Bhupendra v. State of Rajasthan 2013 Cr LJ 1292; Risal Singh v. State of Punjab 2012 Cr LJ 2188

[cxi] Hussainbeg Hayatbeg Mirza and Ors. v. State of Gujarat and Anr. 2013 Cr L.J.1090; K. Neelaveni v. State Rep. by Inspector of Police AIR 2010 SC 3191: (2010) 11 SCC 607 - Husband married another lady and a girl child was born from second marriage - Offence U/s 494 and S. 406 prima facie made out, proceedings cannot be quashed.

[cxii] Sudarshanacharaya v. Purushottamacharya 2012 Cr LJ 4559: AIR 2012 SC 3854

[cxiii] . Khatizam Bi Sikandar Khan v. Rahimat Bi Khan 2010 Cr LJ 331 (Bom)

[cxiv] State of Maharashtra v. Narayan Champalal Bajaj 1990 Cr LJ 2635: 1990 Tax LR 918 (Bom)

[cxv] Mohan (1960) 10 Raj 1527

[cxvi] Halimuddin Ahmad 1976 Cr LJ 449 (Pat)

[cxvii] C.K. Sreedharan v. State of Kerala, 1999 Cr LJ 758 (Ker)

[cxviii] Superintendent and Remembrance of Legal Affairs v SK Roy AIR 1974 SC 794, (1974) CrLJ 678 (SC)

[cxix] Sudhir Shantilal Mehta v. C.B.I., (2009) 8 SCC 1: (2009) 3 SCC (Cri) 646

[cxx] Ibid

[cxxi] Mir Nagvi Askari v. CBI (2009) 15 SCC 643: AIR 2010 SC 528

[cxxii] Okhay Coomar Shaw, (1874) 13 Beng LR 307 (FB); Lalloo Ghella, (1904) 6 Born LR 553; Debi Prasad Bhiagat v. Nagar Mull, (1908) 35 Cal 1108; Jagannath, (1931) 33 Bom LR 1518. This view of the law was approved by the Supreme Court in R.K. Dalmia, A1R 1962 SC 1821

[cxxiii] Bhupendranath Singha v. Giridharilal Nagar, (1933) 60 Cal 1316; Mon Mohan Das v. Mohendra Bhowal (1948) 2 Cal 452

[cxxiv] Bhuban Mohan Rana v. Surendra Mohan Das, (1952) 2 Cat 23 (FB): AIR 1951 Cal 69. See also to the same effect, Grahadurai v. Subash Chandra Bose, 1991 Cr LJ 588; property entrusted to partner under special circumstances; SAQ Hasmi v. State, 1980 Cr. LJ 1030; also emphasizing the need for special contract or entrustment

[cxxv] (1964) 67 Bom LR 443 SC; AIR 1965 SC 1433; (1965) 2 Cr LJ 431

[cxxvi] Alagiri v. State, 1996 Cr LJ 2978 (Mad)

[cxxvii] Anwarul Islam v. W.B., 1996 Cr LJ 2912 (Cal); Nandlal Lakotia v. State of Bihar 2001 Cr. L.J. 1900 (Pat), a partner becomes the owner of his share only after settlement of accounts and allotment of his share to the partner. The partner in this case was a working partner. He dishonestly misappropriated the property to the firm entrusted to him. He was liable for criminal breach of trust.

[cxxviii] Turner Morrison & Co., Bombay v. K.N. Tapuria 1993 Cr L.J. 3384

[cxxix] B.P. Gupta v. State of Bihar 2000 Cr LJ 781 (Pat)

[cxxx] Thermax Ltd v. K.M. Johny (2011) 13 SCC 412: (2012) 2 SCC (Cri) 650; Pramod Parmeswarlal Banka v. State of Maharashtra, 2011 Cr L.J. 4906 (Bom)

[cxxxi] S.K. Alagh v. State of U.P. (2008) 5 SCC 662: AIR 2008 SC 1731: 2008 Cr LJ 2256; (2008) 3 All. LJ 588

[cxxxii] (1864) Weir 3rd Edn., 266

[cxxxiii] Madhu Sudan Malhotra v. Kishore Chand Bhandari 1988 BLJR 360: 1988 SCC (Cr)  854; 1988 Supp SCC 424

[cxxxiv] Raxaben v. State of Gujarat 1992 Cr LJ 2946 (Guj)

[cxxxv] Balram Singh v. Sukhwant Kaur 1992 Cr LJ 792 (P&H)

[cxxxvi] Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604: (2009) 161 DLT 739

[cxxxvii] Hakam Singh and Ors. v. The State Of Punjab and Anr. (1990) DMC 343, (1990) 97 PLR 21

[cxxxviii] Radhey Shyam Khemka v. State of Bihar, 1993 AIR SCW 2427: 1993 Cr LJ 2888: (1993) 3 SCC 54

[cxxxix] Manoranjan Tripathy v. Ganesh Prasad Singh 1994 Cr LJ 204

[cxl] Raj Kishore Patter v. Joy Krishna Sen (1900) 28 Cal 362

[cxli] Kaumudiben Harshadbhai Joshi v. State of Gujarat 2012 Cr LJ 4720 (Guj)

[cxlii] Lee Kun Hee v. State of U.P. (2012) 3 SCC 132: AIR 2012 SC 1007: 2012 Cr L.J. 1551

[cxliii] Daityari, Tripatti v. Subodh Chandra Chaudhuri, (1942) 2 Cal 507

[cxliv] R. Venkatkrishnan v. CBI, (2009) 11 SCC 737

[cxlv] Mafizul Islam Mia v. K.P. Sinha 1968 CriLJ 1120

[cxlvi] (1871) 6 MHC (Appx) xxviii

[cxlvii] Nemichand Parakh (1938) Mad 639

[cxlviii] Stephen v. Chandra Mohan 1988 Cr LJ 308 (Ker)

[cxlix] JRD Tata, Chairman TISCO v. Payal Kumar 1987 Cr LJ 447 (Del)

[cl] Charanjit Singh Chadha v. Sudhir Mehra AIR 2001 SC 3721: (2001) 7 SCC 417

[cli] S.K. Kejriwal v. State 2012 (1) AIR Jhar R 315

[clii] State of U.P. v. Sita Ram 1998 Cr LJ 4225 (All), the court said that ingredients of the offence under s. 420 were not made out

[cliii] Madhosingh v. Kamla Devi 1992 Cr LJ 1858 (Bom)

[cliv] Ghansham Das v. State of Haryana 1992 Cr LJ 2594 (P&H

[clv] Kaumudiben Harshadbhai Joshi v. State of Gujarat 2012 Cr LJ 4720 (Guj)

[clvi] Gobardhan Chandra Mandal v. Kanai Lal Mandal (1953) 2 Cal 133

[clvii] Parveen Kumar v. State of Rajasthan 1998 Cr LJ 1693 (Raj)

[clviii] Moses (1915) 17 Bom LR 670

[clix] C.J. Cadd, (1923) 45 All 588. Gurmez Singh v. State of U.P 1989 Cr LJ 973 (All)

[clx] Sunil Ranjan Ghose v. Samar Roy, 1987 Cr LJ 1603 (Cal)

[clxi] Khitish Chandra Deb Roy, (1924) 51 Cal 796

[clxii] Kalaktar Singh, 1978 Cr LJ 663 (Pat); State v. Jaswantlal Nathalal 1968 Cr LJ 803 (SC) distinguished on the ground that in the latter case the contract was not produced in evidence nor any oral evidence led to prove the terms of the contract. See further Madhavrao J. Scindia v. S.C. Angre, AIR 1988 SC 709: 1988 Cr LJ 853: (1988) 1 SCC 692, where elements of a crime were wanting and, therefore, proceedings, were quashed; Bal Kishan Das v. P. C. Nagar AIR 1991 SC 1531: 1991 Cr LJ 1837, where arbitration proceedings about the matter in question had been going on for more than 17 years, the Supreme Court rejected prosecution under this section. The matter was of civil nature; A.L. Panian v. State of A.P. 1990 Supp SCC 607: 1991 SCC (Cri) 84, failure to pay on due date on the expiry of credit period of sale is not a matter covered by this provision. Central Bureau of Investigation v. Duncan Industries AIR 1996 SC 2452: 1996 Cr LJ 3501, the allegation in the complaint that the goods in respect of which floating charge was created in favour of banks were disposed by the debtor company, does not constitute criminal breach of trust.

[clxiii] Chelloor Mankkal Narayan Ittiravi Nambudiri v. State AIR 1953 SC 478

[clxiv] S. Mohan v. CBI (2008) 7 SCC 1: (2008) 106 Cut LT 360, following the Canbank Financial Services Ltd, case (2004) 8 SCC 355: AIR 2004 SC 5123, where it was held that the accused had a transferable interest in the securities purchased in the name of Andhra Bank and its subsidiary.

[clxv] Joseph Salvaraj A. v. State of Gujarat, AIR 2011 SC 2258: (2011) 7 SCC 59; Devendra v. State of U.P. (2009) 7 SCC 495 : (2009) 3 SCC (Cri) 461

[clxvi] R K Dalmia v. Delhi Administration 1962 AIR 1821, 1963 SCR (1) 253

[clxvii] Madhusudan Malhotra v Kishore Chandra Bhandari (1988) SCC (Cr) 854

[clxviii] Khuman Chand v. State of Rajasthan, 1998 Cr LJ 1693 (Raj)

[clxix] Rajkishore, AIR 1969 Ori 190

[clxx] R.K. Dalmia, AIR 1962 SC 1821: (1962) 2 Cr LJ 805

[clxxi] Maula Bakhsh, (1904) 27 All 28

[clxxii] Balthasar, (1914) 41 Cal 844. The head-note of this case is inaccurate: vide Dwarkadas Haridas (1928) 30 Born LR 1270

[clxxiii] Dahyalal Dalpatram, (1959) 61 Born LR 885

[clxxiv] Bimala Charan Roy, (1913) 35 All 361

[clxxv] Substituted by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956)

[clxxvi] Lal Raoji, (1928) 30 Bom. L.R. 624

[clxxvii] Daya Shanker, (1926) I Luck. 345

[clxxviii] Juala Prasad, (1884) 7 All. 174 (F.B.)

[clxxix] Somnath Puri v State of Rajasthan AIR 1972 SC 1490

[clxxx] Jiwan Das v. State of Haryana AIR 1999 SC 1301

[clxxxi] Sardar Singh v State of Haryana (1977) 1 SCC 463

[clxxxii] Anil Saran v. State of Bihar, AIR 1996 SC 204: 1996 Cr L.J. 408

[clxxxiii] Central Bureau of Investigation v. Duncans Agro Industries Ltd., Calcutta (1996) 5 SCC 591,Indian Oil Corporation v. NEPC India Ltd. And Others (2006) 6 SCC 736 and V.P. Shrivastava v. Indian Explosives Limited and Others (2010) 10 SCC 361

[clxxxiv] C.M. Narayan, AIR 1953 SC 478: 1954 Cr LJ 102

[clxxxv] Velji Raghavji Patel, 1965 (2) Cr L.J. 431 : AIR 1965 SC 1433

[clxxxvi] Indian Trusts Act II of 1882, S. 3

[clxxxvii] Substituted by Act 26 of 1955, sec. 117 and Sch., for “transportation for life” (w.e.f. 1-1-1956)

[clxxxviii] King-Emperor v. Chaturbhuj Narain Ghoudhury, reported in 16 Pat. 108 : A.I.R. (28) 1986 Pat. 850: 87 Cr. L. J. 877

[clxxxix] U. M. W. Niangseh v. K E. W Nongseh AIR 1954 Assam 259 : 1954 Cri LJ 1838

[cxc] Robert Stuart Wauchope v. Emperor 61 cal. 168 : A.I.R. (20) 1933 cal. 800: 35 Cr. L. J. 156 of Calcutta High Court

[cxci] Kartick Chandra Mukherjee v. B.N. Banerji AIR 1954 Cal 547, 58 CWN 552

[cxcii] Bindeshwari Prasad Jaysawal v. Emperor 1949 CriLJ 108

[cxciii] Harakrishna Mahtab v. Emperor reported in A.I.R. (17) 1930 Pat. 209 : 81 Cr. L. J. 249

[cxciv] Ramaswamy Nadar v. The State of Madras AIR1958SC56, 1958(1)AnWR143, (1958) 28 AWR 387, 1958CriLJ228, (1958)IMLJ143(SC), (1958)36MysLJ(SC)113, [1958]1SCR739

[cxcv] Mir Barkat Ali Khan Bhadur v. Syed Shujauddin Ahmed And Anr. 1973 CriLJ 1230

[cxcvi] Rajendra Singh and Anr. v. State Of Uttar Pradesh AIR 1960 All 387, 1960 CriLJ 857

[cxcvii] Rahul Gandhi v. Dr.Subramanian Swamy & Anr.

[cxcviii] Sesa Goa Limited & Ors v. State Of Maharashtra & Anr Writ Petition No.2739 of 2006 of Bombay High Court

[cxcix] B. Saha And Ors v. M. S. Kochar 1979 AIR 1841, 1980 SCR (1) 111

[cc] In Re Ch. Venkata Subbayya

[cci] Amrik Singh v. The State Of Pepsu 1955 AIR 309, 1955 SCR (1)1302

[ccii] State or Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC)

[cciii] Robert Stuart Wauchope v. Emperor 61 cal. 168 : A.I.R. (20) 1933 cal. 800: 35 Cr. L. J. 156 of Calcutta High Court

[cciv] Bindeshwari Prasad Jaysawal v. Emperor 1949 CriLJ 108

[ccv] Hakam Singh and Ors. v. The State Of Punjab and Anr. (1990) DMC 343, (1990) 97 PLR 21

[ccvi] Nand Ram Agarwala v. Emperor 1947 All 343 (AIR V 34) (D)

[ccvii] In Re Jiwandas Savchand, 1930 Bom 490 (AIR V 17) (T)

[ccviii] Fateh Singh v. Emperor' 1940 All 92 (AIR V 27) (Z 7)

[ccix] Hira Lal Chaudhary And Ors. v. State AIR 1956 All 619

[ccx] Surendra Pal Singh v. State, 1957 All LJ 1.47 : AIR 1957 All 122

[ccxi] Bangshilal Bhora And Anr. v. Rowtmal Patwari And Anr. 1951 CriLJ 1388

[ccxii] Mafizul Islam Mia v. K.P. Sinha 1968 CriLJ 1120

[ccxiii] The Registrar, High Court of A.P.  v. B. Sanjeevaiah 1995 (2) ALT 789

[ccxiv] The Registrar, High Court of A.P.  v. B. Sanjeevaiah 1995 (2) ALT 789

[ccxv] Vijai Kapur v. Guest Keen Williams Ltd. 1995 83 Comp Cas 339 Cal, 97 CWN 701

TABLE OF CASE LAWS

A.L. Panian v. State of A.P. 1990 Supp SCC 607: 1991 SCC (Cri) 84

Abdool. (1868) 10 WR (Cr) 23 A .

Adinarayana Iyer, (1907) 17 MLJ 413

Alagiri v. State, 1996 Cr LJ 2978 (Mad)

Amrik Singh v. The State Of Pepsu 1955 AIR 309, 1955 SCR (1)1302

Anil Saran v. State of Bihar, AIR 1996 SC 204: 1996 Cr L.J. 408

Anwarul Islam v. W.B., 1996 Cr LJ 2912 (Cal)

Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660: (2011) 1 SCC (Cri) 85

Automobile Products India Ltd. v. Das John Peter (2010) 12 SCC 593: (2011) 1 SCC (Cri) 768

B. Saha And Ors v. M. S. Kochar 1979 AIR 1841, 1980 SCR (1) 111

B.P. Gupta v. State of Bihar 2000 Cr LJ 781 (Pat)

Bal Kishan Das v. P. C. Nagar AIR 1991 SC 1531: 1991 Cr LJ 1837

Ballala Venkateswarlu v. State, 2005 Cr LJ 1577 (AP)

Balram Singh v. Sukhwant Kaur 1992 Cr LJ 792 (P&H)

Balthasar, (1914) 41 Cal 844

Bandhu, (1885) 8 All. 51

Bangshilal Bhora and Anr. v. Rowtmal Patwari And Anr. 1951 CriLJ 1388

Bhagiram Dome v. Abar Dome, (1988) 15 Cal 388,400; Pramode, (1965) 2 Cr LJ 562

Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604: (2009) 161 DLT 739

Bhopa Sara Bharwad, 1986 Cr LJ 518 (Guj)

Bhuban Mohan Rana v. Surendra Mohan Das, (1952) 2 Cat 23 (FB): AIR 1951 Cal 69.

Bhupendra v. State of Rajasthan 2013 Cr LJ 1292

Bhupendranath Singha v. Giridharilal Nagar, (1933) 60 Cal 1316

Bimala Charan Roy, (1913) 35 All 361

Bindeshwari Prasad Jaysawal v. Emperor 1949 CriLJ 108

Bipin Chandra, 1964 (1) Cr. L.J. 688 (Ori)

Bissessur Roy, (1869) 11 WR (Cr) 51

C.J. Cadd, (1923) 45 All 588

C.K. Sreedharan v. State of Kerala, 1999 Cr LJ 758 (Ker)

C.L.Sagar v. Mayawati, 2003 Cr LJ 690 (All)

C.M. Narayan, AIR 1953 SC 478: 1954 Cr LJ 102

Canbank Financial Services Ltd, case (2004) 8 SCC 355: AIR 2004 SC 5123

Central Bureau of Investigation v. Duncan Agro Industries Ltd. AIR 1996 SC 2452: 1996 Cr LJ 3501, (1996) 5 SCC 591

Chandralekha v. State of Rajasthan JT 2012 (12) SC 390: 2012 (12) SCALE 692

Charanjit Singh Chadha v. Sudhir Mehra AIR 2001 SC 3721: (2001) 7 SCC 417

Chelloor Mankkal Narayan Ittiravi Nambudiri v. State AIR 1953 SC 478

Common Cause v. Union of India, (1999) 6 SCC 667: 1999 SCC (Cri) 1196

Dahyalal Dalpatram, (1959) 61 Born LR 885

Daityari, Tripatti v. Subodh Chandra Chaudhuri, (1942) 2 Cal 507

Dani Singh, AIR 1963 Pat. 52

Daud Khan, (1925) 24 ALJR 153

Daya Shankar. (1926) 1 Luck 345

Debi Prasad Bhiagat v. Nagar Mull, (1908) 35 Cal 1108

Devendra v. State of U.P. (2009) 7 SCC 495 : (2009) 3 SCC (Cri) 461

Dhulji v. Kanchan, AIR 1956 MB 49

Diamond Cables Ltd. v. State of Andhra Pradesh, 2004 Cr. L.J. 4100 (AP)

Dinabandhu Banerjee v. Nandini Mukherjee, 1994 Cr LJ 422 (Cal)

DPP v. Gomez, (1992) 3 WLR 1067 (HL)

Dwarkadas Haridas (1928) 30 Born LR 1270

Employees State Insurance Corporation v. S K Aggarwal 1998 (7) TMI 516 : [1998] 94 COMP. CAS. 75 (SC), 1998 AIR 2676, 1998 (6) SCC 288, 1998 (5) JT 233, 1998 (4) SCALE 328

Fateh Singh v. Emperor 1940 All 92 (AIR V 27) (Z 7)

Gadgayya v. Guru Siddeshvar (1897) Unrep. Cr. C. 919

Gajraj v. State (NCT) of Delhi, (2011) 10 SCC 675: 2012 Cr LJ 413

Girdhar Dharamdas, (1869) 6 BHC (Cr C) 33

Grahadurai v. Subash Chandra Bose, 1991 Cr LJ 588

Gurmez Singh v. State of U.P 1989 Cr LJ 973 (All)

Hakam Singh and Ors. v. The State Of Punjab and Anr. (1990) DMC 343, (1990) 97 PLR 21

Halimuddin Ahmad 1976 Cr LJ 449 (Pat)

Harakrishna Mahtab v. Emperor reported in A.I.R. (17) 1930 Pat. 209 : 81 Cr. L. J. 249

Harun Ness Khanam v. Md. Maklisur, 1998 Cr LJ 3994 (Gauhati)

Hira Lal Chaudhary And Ors. v. State AIR 1956 All 619

Hira Lal, (1907) PR No. 19 of 1908

Hitnarain v. Bednarain, (1944) 24 Pat 128

Hussainbeg Hayatbeg Mirza and Ors. v. State of Gujarat and Anr. 2013 Cr L.J.1090

In Re Jiwandas Savchand, 1930 Bom 490 (AIR V 17) (T)

Indar Singh (1925) 48 All. 288

Indian Oil Corpn. v. NEPC India Ltd. & Ors., (2006) 6 SCC 736

J.M. Desai, 1960 Cr. L.J. 1250: AIR 1960 SC 889

Jagannath, (1931) 33 Bom LR 1518.

Jagroop Singh, 1980 Cr LJ 68 (P&H)

Jaikrishnadas Manohardas Desai v. State of Bombay AIR 1960 SC 889

Jaswant Rai Manilal Akhaney v. State of Bombay, 1956 AIR 575, 1956 SCR 483

Jaswantlal, AIR 1968 SC 700 : 1968 Cr L.J 803

Jiwan Das v. State of Haryana AIR 1999 SC 1301.

Joseph Salvaraj A. v. State of Gujarat, AIR 2011 SC 2258: (2011) 7 SCC 59

JRD Tata, Chairman TISCO v. Payal Kumar 1987 Cr LJ 447 (Del)

Juala Prasad, (1884) 7 All. 174 (F.B.)

K. Neelaveni v. State Rep. by Inspector of Police AIR 2010 SC 3191: (2010) 11 SCC 607

Kailash Kumar Sanwatia v State of Bihar (2003) 7 SCC 399.

Kalaktar Singh, 1978 Cr LJ 663 (Pat)

Kartick Chandra Mukherjee v. B.N. Banerji AIR 1954 Cal 547, 58 CWN 552

Kaumudiben Harshadbhai Joshi v. State of Gujarat 2012 Cr LJ 4720 (Guj)

Kesar Singh, 1969 Cr LJ 1595

Keshab Chandra Boral v. Nityanand Biswas (1901) 6 CWN 203

Khatizam Bi Sikandar Khan v. Rahimat Bi Khan 2010 Cr LJ 331 (Bom)

Khitish Chandra Deb Roy, (1924) 51 Cal 796

Khuman Chand v. State of Rajasthan, 1998 Cr LJ 1693 (Raj)

King-Emperor v. Chaturbhuj Narain Ghoudhury 16 Pat. 108 : A.I.R. (28) 1986 Pat. 850: 87 Cr. L. J. 877

Krishan Kumar v. Union of India 1959 Cr. L.J. 1508 (SC): AIR 1959 SC 1390

Kundan Tillumal, (1942) Kar 288

Kundanlal and Another v. State of Maharashtra, 2001Cr LJ 2288 (Bom)

Lake v. Simmons, (1927) AC 487

Lal Raoji, (1928) 30 Bom. L.R. 624.

Lalloo Ghella, (1904) 6 Born LR 553

Lee Kun Hee v. State of U.P. (2012) 3 SCC 132: AIR 2012 SC 1007: 2012 Cr L.J. 1551

lndian Oil Corporation v. NEPC India Ltd. AIR 2006 SC 2780; (2006) 6 SCC 736

M.M. Prasad Khaitan v. R.G. Poddar (2010) 10 SCC673

Madhavrao J. Scindia v. S.C. Angre, AIR 1988 SC 709: 1988 Cr LJ 853: (1988) 1 SCC 692

Madhu Sudan Malhotra v. Kishore Chand Bhandari 1988 BLJR 360: 1988 SCC (Cr)  854; 1988 Supp SCC 424

Madhusudan Malhotra v Kishore Chandra Bhandari (1988) SCC (Cr) 854

Mafizul Islam Mia v. K.P. Sinha 1968 CriLJ 1120

Mahadev Govind, (1930) 32 Bom LR 356

Mahal Chand Sikwal v. State of West Bengal 1987 Cr. L.J. 1569 (Cal)

Makhulshah (1886) 1 weir 470

Mallela Setharamaiah v. State of A.P. AIR 1989 SC 421: 1989 Cr LJ 968: 1989 Supp (1) SCC 74

Maula Bakhsh, (1904) 27 All 28

Mir Barkat Ali Khan Bhadur v. Syed Shujauddin Ahmed And Anr. 1973 CriLJ 1230

Mir Nagvi Askari v. CBI (2009) 15 SCC 643: AIR 2010 SC 528

Mohammed Ali v. State of M.P. 2006 Cr LJ 1368 (MP)

Mohan (1960) 10 Raj 1527

Mon Mohan Das v. Mohendra Bhowal (1948) 2 Cal 452

Moses (1915) 17 Bom LR 670

Munish Mubar v. State, 2013 Cr. LJ 56 (SC): AIR 2013 SC 912

Nand Ram Agarwala v. Emperor 1947 All 343 (AIR V 34) (D)

Nandlal Lakotia v. State of Bihar 2001 Cr. L.J. 1900 (Pat)

Nemichand Parakh (1938) Mad 639

Nihal, (1887) 9 All 348.

Nirmalabai, (1953) Nag 813

Obayya, (1898) 22 Mad. 151

Okhay Coomar Shaw, (1874) 13 Beng LR 307 (FB)

Onkar Nath Mishra v. State, (NCT of Delhi) (2008) 2 SCC 561: (2008) I SCC (Cri) 507 : 2008 Cr LJ 1391

Pania, (1881) 1 AWN 89

Parbutty Churan Chuckerbutty, (1870) 14 WR (Cr) 13

Parveen Kumar v. State of Rajasthan 1998 Cr LJ 1693 (Raj)

Phul Chand Dube, (1929) 52 All. 200

Phuman, (1907) PR.No. 11 of 1908

Prabhat Bhatnagar v. State & Ors, 2007 Cr LJ 4349 (Raj)

Prakash Alias Ajayan v. State, 2009 Cr LJ 2930 (Ker)

Pramod Parmeswarlal Banka v. State of Maharashtra, 2011 Cr L.J. 4906 (Bom)

Pratibha Rani v. Suraj Kumar & Anr.(1985) 2 SCC 370

R K Dalmia v. Delhi Administration 1962 AIR 1821, 1963 SCR (1) 253

R. Venkatkrlshnan v. Central Bureau of Investigation, (2009) 11 SCC 737

Rahul Gandhi v. Dr.Subramanian Swamy & Anr.

Rajendra Singh and Anr. v. State Of Uttar Pradesh AIR 1960 All 387, 1960 CriLJ 857

Rajendra Singh Lodha v. Arbindo Dey, 1997 Cr LJ 4613 (Cal)

Rajkishore, AIR 1969 Ori 190

Ram Dayal (1886) PR No. 24 of 1886

Ram Niranjan (1964) 1 Cr L.J. 614

Ramakrishna. (1888) 12 Mad 49, 50

Ramaswamy Nadar v. The State of Madras AIR1958SC56, 1958(1)AnWR143, (1958) 28 AWR 387, 1958CriLJ228, (1958)IMLJ143(SC), (1958)36MysLJ(SC)113, [1958]1SCR739

Ramdeo Singh v. State of Bihar 2013 Cr. L.J. 891 (Pat)

Ramesh v. State of Rajasthan (2011) 3 SCC 685.

Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397

Raxaben v. State of Gujarat 1992 Cr LJ 2946 (Guj)

Raza Hussain, (1904) 25 AWN 9

Renukana v. Debjani, 1996 Cr LJ 2839 (Cal)

Risal Singh v. State of Punjab 2012 Cr LJ 2188

Robert Stuart Wauchope v. Emperor 61 cal. 168 : A.I.R. (20) 1933 cal. 800: 35 Cr. L. J. 156

Romesh Chunder Sannyal v. Hiru Mondal (1890) 17 Cal 852

S. Mohan v. CBI (2008) 7 SCC 1: (2008) 106 Cut LT 360

S.K. Alagh v. State of U.P. (2008) 5 SCC 662: AIR 2008 SC 1731: 2008 Cr LJ 2256; (2008) 3 All. LJ 588

S.K. Kejriwal v. State 2012 (1) AIR Jhar R 315

S.N. Palanitkar v. State of Bihar, AIR 2001 SC 2960 : 2001 Cr LJ 4765

Sadhupati Nageswara Rao v. State of Andhra Pradesh (2012) 8 SCC 547: AIR 2012 SC 3242

SAQ Hasmi v. State, 1980 Cr. LJ 1030

Sardar Singh v State of Haryana (1977) 1 SCC 463 : 1977 Cr LJ 1158: AIR 1977 SC 1766

Sathi Prasad, 1973 Cr LJ 344: AIR 1973 SC 448

Satyendra Nath Mukherji, (1947) 1 Cal 97.

Sesa Goa Limited & Ors v. State Of Maharashtra & Anr Writ Petition No.2739 of 2006 of Bombay High Court

Shamsoondur (1870) 2 NWP 475

Shivnarayan v. State of Maharashtra, AIR 1980 SC 439, 1980 CriLJ 388, (1980) 2 SCC 465

Shobhau v. State of M. P., 1998 Cr LJ 3934 (MP)

Sita, (1893) 18 Bom 212

Somnath Puri v State of Rajasthan AIR 1972 SC 1490 : (1972) 1 SCC 63

State of Gujarat v. Jaswantlal Nathalal, 1968 AIR 700, 1968 SCR (2) 408

State of H.P. v. Karanvir 2006 Cr L.J. 2917: AIR 2006 SC 2211: (2006) 5 SCC 381

State of Madhya Pradesh v Pramode Mategaonkar (1965) 2 CrLJ 562 (MP).

State of Maharashtra v. Mohan Radhakrishna Pednekar, 1998 Cr LJ 3771 (Bom)

State of Maharashtra v. Narayan Champalal Bajaj 1990 Cr LJ 2635: 1990 Tax LR 918 (Bom)

State of Orissa v. Bishnu Charan Muduli, 1985 Cr LJ 1573 (Ori)

State of U.P. v. Sita Ram 1998 Cr LJ 4225 (All)

State of UP v. Babu Ram, 1961 AIR 751, 1961 SCR (2) 679

State or Kerala v. Padmanabham Nair, 1999 Cr LJ 3696 (SC)

State v. Jaswantlal Nathalal 1968 Cr LJ 803 (SC)

Stephen v. Chandra Mohan 1988 Cr LJ 308 (Ker)

Sudarshanacharaya v. Purushottamacharya 2012 Cr LJ 4559: AIR 2012 SC 3854

Sudhir Shantilal Mehta v. C.B.!. (2009) 8 SCC 1 : (2009) 3 SCC (Cri) 646

Sukhdeo Singh v. State of Rajasthan 2008 Cr LJ 611 (Raj

Sunil Ranjan Ghose v. Samar Roy, 1987 Cr LJ 1603 (Cal)

Superintendent and Remembrance of Legal Affairs v SK Roy AIR 1974 SC 794, (1974) CrLJ 678 (SC)

Surendra Pal Singh v. State, 1957 All LJ 1.47 : AIR 1957 All 122

Surendra Prasad Verma v. State of Bihar [xvi] AIR 1973 SC 488

Thakarsi, (1949) Nag 620; Jaswantrai Akhaney, (1956) 58 Bom LR 1026 (SC)

The Registrar, High Court of A.P.  v. B. Sanjeevaiah 1995 (2) ALT 789

Thermax Ltd v. K.M. Johny (2011) 13 SCC 412: (2012) 2 SCC (Cri) 650

Turner Morrison & Co., Bombay v. K.N. Tapuria 1993 Cr L.J. 3384

Turuku Budha Karkaria v. State, 1994 Cr LJ 552 (Ori)

U. Dhar and Another v. State of Jharkhand, AIR 2003 SC 974: 2003 Cr LJ 1224 : (2003) 2 SCC 219

U. M. W. Niangseh v. K E. W Nongseh AIR 1954 Assam 259 : 1954 Cri LJ 1838

Udai Shankar Awasthi v. State of U.P. (2013) 2 SCC 435; 2013 (1) SCALE 212

V.P. Shrivastava v. Indian Explosives Limited (2010) 10 SCC 361 : (2010) 3 SCC (Cri) 1290

V.R. Dalal v. Yougendra Naranji Thakkar, (2008) 15 SCC 625: AIR 2008 SC 2793

Velji Raghavji Patel v. State of Maharashtra (1964) 67 Bom LR 443 (SC) :1965 (2) Cr L.J. 431 : AIR 1965 SC 1433

Venkatasami, (1890) 14 Mad 229

Vijai Kapur v. Guest Keen Williams Ltd. 1995 83 Comp Cas 339 Cal, 97 CWN 701

Welch’s Case, (1846) I Den 199

LIST OF ENACTMENTS AND RULES MENTIONED

Code of Criminal Procedure, 1973 (Act No. 2 of 1974)

Companies Act, 1956

Dowry Prohibition Act, 1961

Employees’ Provident funds and Miscellaneous Provisions Act, 1952 (19 of 1952)

Employees’ State Insurance Act, 1948 (34 of 1948)

Indian Penal Code, 1860

Indian Trusts Act II of 1882

Prevention of Corruption Act, 1947