1.
RELEVANT PROVISIONS
Sections
403 to 409 of P.P.C. 1860.
2.
MEANING OF CRIMINAL MISAPPROPRIATION
According
to Black's Law Dictionary;
Misappropriation'
means; "the unauthorized, improper, or unlawful use of funds or other
property for purpose other than that for which intended."
3.
DEFINITION OF CRIMINAL MISAPPROPRIATION; UNDER SECTION 403 PPC
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."
Explanation
1:
A
dishonest misappropriation for a time only is a misappropriation within the
meaning of 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 find 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 that the rear owner cannot be found.
4.
ESSENTIAL INGREDIENTS OF CRIMINAL MISAPPROPRIATION; UNDER SECTION 403 P.P.C
The
essential ingredients of criminal misappropriation under this section are as
follow;
(I)
DISHONESTLY MISAPPROPRIATES
The
term 'dishonestly' has been defined in Section 24 P.P.0 as; "whoever does
anything with the intention of causing wrongful gain to one person or wrongful
loss to another person, is said to do that thing "dishonestly". On
the other hand the verb 'to appropriate' in this connection means setting apart
for, or assigning to, a particular person or use and to misappropriate means to
set apart for or assign to the wrong person or a wrong use.
(II)
CONVERTS TO HIS OWN USE
To
constitute this offence there must be actual conversion of the thing
appropriated to the use of some person other than the person entitled thereto.
A person obtaining goods of another and disposing of them fraudulently for the
benefit of himself or a third person is guilty of conversion.
(III)
ANY MOVEABLE PROPERTY
The
misappropriation of movable property which has been defined Under Section 22
P.P.0 as "The words "movable property" are intended to include
corporeal property of every description, except land and thing attached to the
earth or permanently fastened to anything which is attached to the earth."
There cannot be any criminal misappropriation with regard to immovable
property.
(IV)
PUNISHMENT UNDER SECTION 403 P.P.C
Section
403 also prescribes the punishment for anybody who is found guilty of criminal
misappropriation. It says that anybody guilty of criminal misappropriation
would be liable to
(i) Imprisonment of either description
for a term which
may
extend to two years, or
(ii) Fine, or
(iii) Both.
5.
PUNISHMENT FOR DISHONEST MISAPPROP RIATION OF PROPERTY POSSESSED BY DECEASED
PERSON AT THE TIME OF HIS DEATH; UNDER SECTION 404 P.P.C
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 shall be punished with
(i) Imprisonment
of either 'description for a term which may
extend to three years; and
(ii) 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 to servant,
(iii) The imprisonment may extend to seven
years.
6.
MEANING AND DEFINITION OF CRIMINAL BREACH OF TRUST
(I)
ACCORDING TO BLACK'S LAW DICTIONARY
"Term
breach of trust means; the wrongful misappropriation by a trustee of any fund
or property which had been lawfully committed to him irk` a fiduciary
character."
(II)
STATUTORY DEFINITION UNDER SECTION 405 P.P.C: Criminal breach of trust
"Whoever,
being in any manner entrusted with property, or with any dominion over
property, dishonestly misappropriates or convicts 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."
Explanation:
'A'
being executor of the will of the deceased person, dishonestly disobeys the law
which directs him to divide the effects according to the will, and appropriates
them to his own use.
7.
ESSENTIAL INGREDIENTS OF CRIMINAL BREACH OF TRUST; UNDER SECTION 405 P.P.C
The
essential ingredients of criminal breach of trust are as follow
(I)
ENTRUSTING ANY PERSON
The
word entrustment in Section 405 connotes that the accused holds the property in
a fiduciary capacity. One of the ingredients of the offence of criminal breach
of trust is that the person accused must have been entrusted with the property
in question.
(II)
MISAPPROPRIATION OR CONVERSION
For
an offence of criminal breach of trust besides showing that the property was
entrusted to the accused it is further necessary to show that he had
dishonestly misappropriated or converted it to his own use. Therefore in absence
of any allegation of misappropriation or conversion of the property by the
accused, an offence under Section 406 is not constituted.
(III)
DISPOSAL IN VIOLATION OF ANY LAW OR CONTRACT
Where
the contract is such that it creates a trust in respect of the property alleged
to have been misappropriated and converted, this section is attracted. It means
that where there was a contract of trust in order to hold certain property in
question and the same is violated by disposing of the property in any manner other
than that was incorporated in the contract, it would amount to criminal breach
of trust. Accused shall also be liable under this section if he does any act in
violation of law concerning the trust.
(IV)
DISHONESTLY
Another
important ingredient of criminal breach of trust is that misappropriation or
conversion must be the result of dishonesty.
8.
PUNISHMENT FOR CRIMINAL BREACH OF TRUST:
(I)
GENERAL PUNISHMENT;. UNDER SECTION 406 P.P.C:
Whoever
commits criminal breach of trust shall be punished with;
(i) Imprisonment of either description
for a term which may extend to seven
years, or
(ii) Fine, or
(iii) Both.
(II)
PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY CARRIER, ETC. UNDER SECTION 407
P.P.C
Whoever
being entrusted with property as a carrier, wharfing or ware house-keeper,
commits criminal breach of trust in
(i)
respect of such property, shall be punished with
(ii)
Imprisonment of either description for a term which may extend to seven years,
and Shall also liable to fine.
Here
wharfinger is one who is the owner of wharf.
(III)
PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY CLERK OR SERVANT; UNDER SECTION 408
P.P.C:
Whoever
being clerk or servant with regard to the property of the claimant commits
criminal breach of trust shall be punished with;
(i)
Imprisonment of either description for a term which may extend to seven years,
and
(ii)
Shall also liable to fine.
(IV)
PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY PUBLIC SERVANT, OR BY BANKER,
MERCHANT OR AGENT; UNDER SECTION 409 P.P.C:
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 criminal breach of trust
shall be punished with;
(i) Imprisonment of either description
for a term which may extend to ten years, and
(ii) Shall also liable to fine.
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