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    Tuesday, 10 October 2017

    Distinguish between Theft and Criminal Breach of Trust

    1. Introduction
    Theft and criminal breach of trust are slightly difference, from each other. In theft property is taken out of the  possession of another person without his consent. In criminal breach of trust the property of a another is being misused or disposes of without the consent of another person / real owner.

    2. RELEVANT PROVISION
    Following are the relevant provisions of PPC regarding the concerned topic:
    Sections 378 and 379 for theft.
    Sections 405 and 406 for criminal breach of trust.

    3. THEFT U/SEC. 378, PPC:

    I. MEANING
    Theft according to Black's Law Dictionary is the felonious taking and removing of another's personal property with the intent of depriving the true owner of it.

    II. THEFT U/S. 378 OF PPC
    Whoever, intending to take dishonestly any moveable property out of the possession of any person without that person's consent, moves that property in orders to such taking, is said to commit theft.

    III. INGREDIENTS OF THEFT

    (i) Dishonest intention
    It is essential for theft that the removal of the property in question must have been with the intention to take the property dishonestly. In other words, there must be an intent to cause wrongful gain to one person or wrongful loss to another person. Where property is recovered in the assertion of a contested claim of right is however unjustified that claim may be, the removal thereof does not constitute theft.

    (ii) Movable property
    The property must be movable. Movable property has been defined in Section 22 ante as including corporeal property of every description except land and thing attached to the earth or permanently fastened to anything which is attached to earth. Further the explanation of this section says, a thing so long as is attached to the earth is not the subject of theft but it becomes capable of being subject of theft as soon as it is severed from earth.

    (iii) Out of possession of any person
    The property which is subject matter of theft should be in possession of someone else than the person charged with theft. As where the property is not removed from the possession of another person, no offence is said to have been committed. So in order to constitute the offence of theft, the property must be in possession of any person other than the person charged with theft.

    (iv) Without consent of that person
    The taking of the property out of the possession of . owner must be without consent. As where the things aril moved with the consent of the owner, the offence of theft is not constituted. So the taking or moving of property out of possession of owner must be without his consent.

    (v) Moves that property in order to such taking
    Since the definition of theft requires that the moving of property is to be "in order to such taking" the word such meaning intending to take dishonestly the very moving must be with dishonest intention. Till the property is moved no offence of theft can be committed even if the accused had intended to take dishonestly the property out of possession of any other person without his consent. So there must be some removal of property in order to accomplish the taking of it.

    4. CRIMINAL BREACH OF TRUST


    A person commits criminal breach of trust if he 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 to do so.

    (I) INGREDIENTS OF BREACH OF TRUST SECTION 405 

    Following are the ingredients of criminal breach of trust,

    i. Entrusted to Person Property
    Entrustment is an essential element of the/ offence of criminal breach of trust. It may have different implication in different contexts: In its most general significance, it means handing over the possession for some purposes. Entrustment of property. and failure of the accused to account of the same is sufficient to infer that the accused committed the offence of criminal breach of trust.

    (ii) Dishonestly Misappropriating converting that Property
    Offence of criminal breach of trust would not be made out when there is no material to substantive allegation of dishonest misappropriation or conversion to one s own use of that properly.

    (iii) Dishonestly Use or Disposal of Property:
    A criminal breach of trust may be committed by a person who dishonestly uses of disposes of that property or willfully suffers any other person so to do 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.

    Illustration
    `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 appropriates them to his own use. 'A' has committed breach of trust.

    (ii) PUNISHMENT U/SECTION 406
    Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both.

    5. DIFFERENCE BETWEEN THEFT AND BREACH OF TRUST

    I. AS TO MODE OF ACQUISITION
    In theft there is wrongful taking of moveable property out of the possession of the owner i.e. by stealth without the owner's  knowledge but In criminal breach of trust, the property is given on trust or received on one's behalf and instead . of discharging the trust it is dishonestly misappropriated or use or disposed of in violation of any law.

    II. AS TO ORIGINAL TAKING OF PROPERTY
    In a theft the original taking is dishonest and without the consent of the owner but In a criminal breach of trust, the original taking may be both honest and with the consent of the owner.

    III. AS TO POSSESSION
    In theft, the offence is the completed as soon as the property is dishonestly taken away but In criminal breach of trust the offender prior to the offence is himself in the possession of property the offence is completed when he dishonest converts the same to his own.

    IV. AS TO NATURE
    In theft the property in question is only a movable property but In criminal breach of trust the property in question may be moveable or immovable.

    V. AS TO RELATION
    In theft, there is no contractual relation between the parties but In criminal breach of trust there is such a contract used relation between the parties.

    VI. AS TO PUNISHMENT
    the punishment is imprisonment of either description for three years or with fine or with both but The punishment is imprisonment of either description for a term of seven years or with fine or with both.

    6. ANALYSIS

    In last to conclude I can say that theft and criminal breach of trust are offences relating to property. Both of them are different from each other on so many points such as, mode of acquisition is different, as to intention, as to possession of property, as to natures etc.
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    Item Reviewed: Distinguish between Theft and Criminal Breach of Trust Rating: 5 Reviewed By: Usman Ali
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