UNIT V

OFFENCES AGAINST PROPERTY: THEFT, EXTORTION, ROBBERY&

DACOITY, CHEATING, MISCHIEF, CRIMINAL, TRESPASS, CRIMINAL
MISAPPROPRIATE AND CRIMINAL BREACH OF TRUST.

ChapterXVII

Theft, Extortion, Robbery and Dacoity are offences in criminal law affecting the property of
a person, defined in Sections 378 to 402 of the Indian Penal Code.

On prima facie basis they seem to be very much similar to each other, but on a closer look
it may be found that there are slight differences which distinguish one from another.

Section 378. Theft. -Whoever intends to take dishonestly any movable property out of the
possession of any person without that person's consent, moves that property in order to
such taking, is said to commit theft.

Ingredients:

Whoever Intending to take dishonestly

Any moveable property

Out of the possession of any person

Without the (express or implied) consent of that person

Moves that property in order of such taking

Is said to commit theft.

Section 24 of the Act defines the term dishonestly as "doing something with the intention of
causing a wrongful gain or wrongful loss". Therefore, only stealing something dishonestly
will be regarded as theft under this section.

Section 22, Indian Penal Code, 1860 deals with the meaning movable property.
The words "movable property" is intended to include corporeal property of every
description, except land and things attached to the earth or permanently fastened to
anything which is attached to the earth.

CASE: K. N. Mehra v State of Rajasthan, where the SC held that proof of intention to cause
permanent deprivation of property to the owner, or to obtain a personal gain is not
necessary for the purpose of establishing dishonest intention.

Thus: (1) the absence of the person's consent at the time of moving, and

(2) the presence of dishonest intention in so taking and

at the time are the essential ingredients of the offence of theft.

Explanation 1.-A thing so long as it is attached to the earth, not being movable property, is
not the subject of theft; but it becomes capable of being the subject of theft as soon as it is
severed from the earth.

Explanation 2.-A person is said to cause a thing to move by removing an obstacle which
prevented it from moving or by separating it from any other thing, as well as by actually
moving it.

Explanation 3.-A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, as a consequence of the motion so caused, is
moved by that animal.

Section 379, IPC, 1860 prescribes punishment for the offence of theft.

It states that," whoever commits theft shall be punished with simple or rigorous
imprisonment for a term extending up to three years, or with fine, or with both."

Section 380. Theft in dwelling house, etc.-

Whoever commits theft in any building, tent or vessel, which building, tent or vessel is
used as a human dwelling, or used for the custody of 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.
CASE: In the case of Pyare Lal Bhargava v. State of Rajasthan, a government employee
took a file from the office and gave it to Mr. A and brought it back two days later. It was held
that he took the property away with a dishonest or malicious intention and that is enough
to term it as a theft.

Extortion:
Section 383. Extortion. Whoever intentionally puts any person in fear of any injury to that
person, or to any other, and thereby dishonestly induces the person so put in fear to deliver
to any person any property, or valuable security or anything signed or sealed which may be
converted into a valuable security, commits "extortion".

Extortion has been defined under Section 383 of the Act:

Whosoever intentionally puts any person in the fear of any injury to that person, or to any
other;

Thereby dishonestly inducing that person so put in fear, to deliver to any person;

Any property (movable or immovable) or valuable security; or

Anything signed or sealed may be converted into a valuable security.

Section 30 defines valuable security- A document relating to a legal right. Will, property
papers, stamp papers, promissory notes etc.

Section 44. "Injury". The word "injury" denotes any harm, whatever illegally caused to any
person, in body, mind, reputation or property.

EXAMPLE:

A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus
induces Z to give him money.

A has committed extortion.

A threatens to publish some statement that will destroy the reputation of Z. Statement is
true. Has A committed extortion?

A threatens Z that he will keep Z's child in wrongful confinement, unless Z signs and
delivers to a promissory note binding Z to pay certain monies to A. Z sings and delivers the
note. A has committed extortion.
Section 384. Punishment for extortion. - Whoever commits extortion shall be punished
with imprisonment of either description for a term which may extend to three years, or with
fine, or with both.

CASE: In the landmark case of R.S. Nayak v. A.R Antulay, A.R. Antulay, a CM, promised the
sugar cooperatives whose cases were pending before the government for consideration
that their cases would be looked into if they donated money. It was held that fear or threat
should be used for extortion, and since in this case, there was no fear of injury or threat it
would not amount to extortion.

ROBBERY:
Section 390. Robbery. In all robbery there is either theft or extortion.

When theft is robbery.-Theft is "robbery" if, in order to the committing of the theft, or in
committing the theft, or in carrying away or attempting to carry away property obtained by
the theft, the offender, for that end voluntarily causes or attempts to cause to any person
death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant
wrongful restraint.

When extortion is robbery.-Extortion is "robbery" if the offender, at the time of committing

the extortion, is in the presence of the person put in fear, and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint
to that person or to some other person, and, by so putting in fear, induces the person so
put in fear then and there to deliver up the thing extorted.

Explanation. The offender is said to be present if he is sufficiently near to put the other
person in fear of instant death, of instant hurt, or of instant wrongful restraint.

Examples:

a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without
Z's consent. Here A has committed theft, and, in order to commit that theft, has voluntarily
caused wrongful restraint to Z. A has therefore committed robbery.

(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence,
surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant
hurt and being at the time of committing the extortion in his presence. A has therefore
committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child, and threatens to file it down
a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has
extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there
present. A has therefore committed robbery on Z.

Causing Death, Hurt or Wrongful Restraint or Fear

Death, hurt, wrongful restraint or fear can be caused when theft is a robbery or when
extortion is robbery. These two are explained below with the help of illustrations.

When theft is robbery

Theft is a robbery when in order to commit theft, the offender voluntarily causes or
attempts to cause to any person death, subject him to wrongful restraint, cause hurt or
induce fear of instant death, instant wrongful restraint or cause instant hurt.

Theft can be called as a robbery when the conditions given below are satisfied:

When the offender voluntarily attempts to cause death;

•wrongful restraint;

•fear of instant death;

• instant wrongful restraint;

• instant hurt.

And the above acts are done:

•while committing the theft,

•While carrying away the property acquired by theft, or while attempting to carry away
property.

When extortion becomes robbery

Extortion becomes robbery when the person committing the offence of extortion put the
other person in fear and commits extortion by putting that person in fear of death, instant
wrongful restraint to that person or to some other person and by doing so induces the
person so put in fear then and there deliver the thing that has been extorted.

Punishment for Robbery

Indian Penal Code, 1860 deals with all kinds of punishments related to criminal law. Under
Section 392 of this code, the punishment for robbery is defined. This section says that any
person who commits robbery shall be punished with imprisonment which may be
extended up to ten years and shall also be liable for fine.

Further, this section says that if a person commits a robbery on a highway, then the term
for imprisonment will be 14 (fourteen) years. Section 393 of the Indian Penal Code defines
the punishment for an attempt to commit robbery.

The punishment for this is imprisonment for up to 7 years and also liable for fine.

Section 391. Dacoity. When five or more persons conjointly commit or attempt to
commit a robbery, or where the whole number of persons conjointly committing or
attempting to commit a robbery, and persons present and aiding such commission or
attempt, amount to five or more, every person so committing, attempting or aiding, is said
to commit "dacoity"

395. Punishment for dacoity. Whoever commits dacoity shall be punished with 1
[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten
years and shall also be liable to fine.

396. Dacoity with murder. If any one of five or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of those persons
shall be punished with death, or 1 [imprisonment for life], or rigorous imprisonment for a
term which may extend to ten years, and shall also be liable to fine.

397. Robbery, or dacoity, with attempt to cause death or grievous hurt. If, at the time of
committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous
hurt to any person, or attempts to cause death or grievous hurt to any person, the
imprisonment with which such offender shall be punished shall not be less than seven
years.

398. Attempt to commit robbery or dacoity when armed with deadly weapon. If, at the time
of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon,
the imprisonment with which such offender shall be punished shall not be less than seven
years.

399. Making preparation to commit dacoity. Whoever makes any preparation for
committing dacoity, shall be punished with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.

400. Punishment for belonging to gang of dacoits. Whoever, at any time after the passing
of this Act, shall belong to a gang of persons associated for the purpose of habitually
committing dacoity, shall be punished with 1 [imprisonment for life], or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine

CASE: The State vs Sadhu Singh and Ors in this case, four and one kurda Singh was
involved in committing a dacoity. They were all armed with deadly weapons such as rifles
and pistols. They committed a robbery at the house of gharsiram. They injured Gharsiram,
jugalkishore, Sandal and Jugalkisore. The dacoits, in this case, tried to take a wristwatch
and a shawl of one person but as they were villagers the dacoits were not able to take
anything with them. When dacoits started running from the villagers, they received a hot
chase from them and in return dacoits shot a fire. As a result, dharma, one of the villagers
died but the villages captured one of the dacoits. In this case, the dacoits were charged
under Section 395 of the Indian Penal Code.

Difference between theft, extortion, robbery and dacoity

There is no delivery of property by the victim, in theft; whereas there is delivery in extortion;
in case of robbery and dacoity; there is no delivery if theft occurs during the course of
robbery or dacoity.

415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the
person so deceived to deliver any property to any person, or to consent that any person
shall retain any property, or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived, and which act or
omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property, is said to "cheat".

Explanation. A dishonest concealment of facts is a deception within the meaning of this

section

EXAMPLES:
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus
dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A
cheat.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that
this article was made by a certain celebrated manufacturer, and thus dishonestly induces
Z to buy and pay for the article. A cheat.

(c) A, exhibiting to Z a false sample of an article intentionally deceives Z into believing that
the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay
for the article. A cheat.

Essential Ingredients of Cheating:

The Section requires:

•deception of any person.

•fraudulently or dishonestly inducing that person to deliver any property to any person or
to consent that any person shall retain any property; or

intentionally inducing a person to do or omit to do anything which he would not do or omit

if he were not so deceived, and the act or omission causes or is likely to cause damage or
harm to that person in body, mind, reputation or property.

➢ Deception

Deception is necessary to charge for cheating, it is an act to make a person believe

something which is not true. It can be done to induce the other person to either deliver or
retain some property or to commit an act or omission.

In the case of K.R. Kumaran and Ors. vs State of Kerala, a person who was admitted in
the hospital was checked by the doctor and the doctor very well knew that the person
wouldn't be able to survive. The doctor conspired with other accused and issued a life
insurance policy for the person who was going to die and in order to do so, he certified
himself to be fit and healthy.

This was done by the accused in order to get money from the insurance company after the
patient dies. The court held the accused liable for the offence of cheating and deceiving
the insurance company in order to earn benefits for his own good.

➢ Willful Representation and Cheating

A fraudulent representation or willful misrepresentation of a particular fact is made
directly or indirectly While deceiving a person, with an intention to cheat.

In order to prove the offence, it is not only necessary to prove that a false representation
was made by the accused but also that the accused knew that the representation was
false and willfully made so as to apprehend loss to the prosecutor. If the accused
knowingly makes an erroneous representation which is false, then the accused can be
held liable for the offence of cheating.

➢ Dishonest concealment of facts:

Explanation- section 415

Dishonestly hiding facts amounts to deception although not all concealment is of material
facts, if it is done with a dishonest intention then it is deception. Such concealment may
not be necessarily illegal but dishonest, Dishonest concealment includes an instance
where the accused has no legal obligation to speak but remains silent.

➢ Deception and cheating- False promise to Marriage

The question arises as to whether a false promise to marry made by the accused to trick a
woman in order to fulfil sexual intercourse amounts to cheating or not.

In the case of Mailsami v. State of Tamil Nadu the accused made promises to marry, had
sexual intercourse and made the woman pregnant. When the woman was six months
pregnant, the accused laid down a condition to marry which included abortion of
pregnancy, but the victim refused to abort.

The court decided that the deception of the accused had induced the woman to does
something which she would not have done if not deceived and induced to do so. this
amounts to cheating that was made punishable under section 417 of the Indian penal
code.

➢ Inducement

After the accused has deceived the victim there must be an inducement to either deliver a
property or to believe it to be retained or to do something or omit to do something without
which mere deception would not amount to the offence of cheating.

In the case of Shri Bhagwan Samardha Sreepadha Vallabha Venkata Vishwanandha

Maharaj v. State of Andhra Pradesh, the accused claimed to possess divine powers. He
induced the perpetrator to treat the dumbness of his girl. This amounted to the offence of
cheating.
 ➢ Necessity of dishonest intention

If the mental element of dishonesty or fraudulence is absent while inducing the victim, it
doesn't amount to cheating. Dishonest intentions with zero intent to honor them is
essential for cheating to take place.in the case of Dr Sharma's Nursing Home v. Delhi
Administration, the accused had assured the prosecutors to provide air-conditioned
rooms. The prosecutors were not provided with it rather they were charged with the fee of
the same. The supreme court on an appeal held that there was no evidence for proving the
presence of dishonest intentions of the accused. Hence non-fulfilment of promises does
not amount to cheating.

➢ Punishment for Cheating

Section 417- Simple cheating is A punishable offence with imprisonment for a term
extending to one year or with fine or with both fine and imprisonment.

Section 418- The section here portrays cheating with knowledge that wrongful loss will
occur to a person whose interest the offender is bound to protect. Here the person has a
fiduciary duty of trust bound by law or legal contract.

The person committing such an offence shall be punished with imprisonment for a term
which may extend to 3 years or with a fine or both. Intention is essential to be proved for
conviction under this section. Here cheating can be done by trustees, agents, guardians,
solicitors, manager of a Hindu family, manager of a company or a bank etc.

It was held in the case of S Shankarmani & Ors v. Nibar Ranjan Parida, although there is a
fiduciary relationship, if the accused does not have a dishonest intention to cheat, it will
not be considered as an offence under the section.

Section 420- A person cheating and dishonestly inducing a person to deliver any property
to any person or to make, alter or destroy a part or whole of valuable security, which is
signed or sealed, and which is capable of being converted into valuable security shall be
punished with imprisonment either a term extending to 7 years and shall also be liable to
fine. In the case of Anil Chandra Pitambardas v. Rajesh held that where there is delivery of
any property or destruction of any valuable security, section 420 is the proper section to
apply and not section 417.

Section 416- A person is said to cheat by personation when he cheats pretending to be

another person or by knowingly substituting himself with someone else or representing
that he or any other person is a person which he or any other person is not.
 The individual here is committed irrespective of whether the individual has personated an
imaginary or a real person. The punishment includes imprisonment for either description
for a term extending to 3 years or fine or both under section 419.

Illustration: Mr. 'X' has cheated pretending to be a certain rich banker of the same name,
here he has cheated by personation.

MISCHEIF:
The definition of mischief is mentioned under Section 425 of IPC & the punishment is
prescribed under Section 426 of IPC. Further Section 427 to 440 lays down the specific
punishment prescribed for aggravated forms of mischief depending upon the nature & the
value of the property damage.

As per the Section 425 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) that
whenever anyone performs an act either having an intention to cause or is aware that his
act is likely to bring, some destruction or damage to any property, destroying or
diminishing its value and utility, hence, resulting in an undue loss or damage to the public
or any person is said to commit mischief.

In simpler terms, it can be understood as when an individual intends to perform an act or

has the knowledge that his/her act will create hindrance in allowing another person to
enjoy the benefit of their property by one means or other, it is called a mischief. However,
this act can be even against the public or against a specific person as well.

o Objective

The Law of Mischief under IPC is specifically drafted with an objective to provide protection
against the destruction of the property causing any wrongful loss or damage to the public
or an individual. It is an extension to the legal maxim sic utretuoleadas which means “use
your own property”, but not in a way that can injure your neighbor's or other's property."

EXAMPLES:

(a) A voluntarily burns a valuable security belonging to Z intending to cause wrongful loss to
7. A has committed mischief

(b) A introduces water into an icehouse belonging to Z and thus causes the ice to melt,
intending wrongful loss to Z. A has committed mischief.

(c) A voluntarily throws into a river a ring belonging to Z, with the intention of thereby
causing wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisfy a debt
due from him to Z, destroys those effects, with the intention of thereby preventing Z from
obtaining satisfaction of the debt, and of thus causing damage to Z. A has committed
mischief.

➢ When accused is the owner of the damaged property

In the case of Indian Oil Corporation v. NEPC India Ltd. and Ors., the Court held that
ownership or possession of the property is not a deciding factor in the matter of the
application of section 425 of IPC. Thus, mischief is said to be committed even in cases
when the accused is the owner of the property provided all the other essential ingredients
mentioned are satisfied.

This is further evident from the illustrations (d) and (e) to Section

425. According to the facts of the above case, the petitioner alleged that the respondent
removed the engines of the aircraft diminishing their value and utility. Since the appellants
had the right to possess the aircraft it resulted in wrongful loss or injury. Hence the
Supreme held that the allegations amounted to the offence of mischief as all the essential
ingredients of mischief had been satisfied.

➢ Ingredients of Mischief

Essentially there are three key elements to establish Mischief as per the definition laid
down in section 425 of IPC which are as follows:

•Intention or the knowledge of the act (mens rea);

•The act resulting in destruction, damage or change in the property or situation thereof;
and (actus rea)

CASE:In the case of Krishna Gopal Singh vs. State of Uttar Pradesh , it was stipulated
that if the accused has committed an act without any intent or knowledge that the act in
question is likely to cause wrongful loss or damage to any person or the public at large, it
will not fall under the ambit of mischief as the element of "Mens rea" is absent. Similarly, if
an act is committed without free consent i.e. Under some pressure or duress, it will also
not amount to mischief.

SECTION 426: Punishment for Mischief The punishment for Mischief is prescribed under
Section 426 which states that it attracts imprisonment of a term which may extend up to
three months, or with fine, or with both, as the court may deem fit. The offence under this
Section is non-cognizable, bailable, compoundable, and triable by any Magistrate.

Aggravated forms of Mischief

SECTION 427: Mischief causing damage to the amount of fifty rupees When a Mischief
committed results in pecuniary damage of fifty rupees or upwards the person will be
subject to the imprisonment of either description of a term with a maximum of two years,
or with fine, or with both.

CRIMINAL TRESPASS:
What is Criminal Trespass?

The definition of 'Criminal trespass' in Black's Law Dictionary is stated as "A person who
enters on the property of another without any right, lawful authority or an express or
implied invitation or license".

Criminal trespass basically refers to an unlawful entry by a person into a private property
of another person. Any person who enters the property of another without the owner's
permission is said to have committed the offence of criminal trespass. All around the
globe, trespass against the property has been recognized as a civil wrong. However, a lot of
countries, including India have made it a criminal offence too. In India, Criminal trespass is
ordinarily a civil wrong and usually compensation damages are granted. However, trespass
with a criminal intention is treated as a criminal offence and is punishable under the IPC.
The reason for making it a criminal offence is to keep the trespasser away and so that the
owners enjoy their property without any interruptions.

Section 441. Criminal trespass.-Whoever enters into or upon property in the possession of
another with intent to commit an offence or to intimidate, insult or annoy any person in
possession of such property, or having lawfully entered into or upon such property.
unlawfully remains there with intent thereby to intimidate, insult or annoy any such person,
or with intent to commit an offence, is said to commit "criminal trespass".

The ingredients of Criminal Trespass:

The essentials of criminal trespass are:

• Entry into property in the possession of another

• If such entry is lawful, then to remain upon such property unlawfully
• Such entry or unlawful remaining must be done with the intention to:
• To commit an offence
• To intimidate, annoy or insult the person in possession of the property.

Whoever enters
To commit the offence of criminal trespass, there must be an actual entry into the property
of another by the accused person. No trespass can occur if there is no physical instrument
by the accused into the private property of the victim.

Property

The term property under this Section includes both movable and immovable property.
Wrongful entry into one's car or other movable property would have similar liability as
wrongful entry into one's house.

Possession of another

The possession of the property should be in the possession of the victim and not the
trespasser. Having the ownership of the property is not necessary, mere possession is
sufficient to claim criminal trespass against the trespasser. However, it is not necessary
for the person having possession or the owner of the property to be present at the time
when the trespassing occurred, no presence of owner or possessor would also amount to
trespassing as long as the premises are entered into by the trespasser to annoy.

For instance, writing love letters and delivering them to a girl's house against her will would
also amount to criminal trespass, even if at the time of delivering such letters, the girl was
not at home.

Intention

If it is proved that the intention of the accused parties was not to insult, harm or annoy the
owners or possessors of the property, then it would not amount to criminal trespass. The
Intention is the essence of this crime, and if there is no dominant motive to commit the
crime, no criminal trespass. The test for determining whether the entry was done with an
intent to cause annoyance or any kind of harm is to determine the aim of a trespasser at
the time of such entry.

In Punjab National Bank Ltd v All India Punjab National Bank Employees' Federation, the
court held that as the employees who were on strike entered the bank with the intention to
only put pressure on the management to concede their demands, and there was no intent
to insult, harm or annoy any of the superior officers, their entrance into the bank cannot
amount to criminal trespass. However, if in the given circumstances, the strikers would
have stormed into the private cubicles or offices of the superior staff with the aim of
causing annoyance to such members, then it would amount to criminal trespass.
Section 447. Punishment for criminal trespass.-Whoever commits criminal trespass shall
be punished with imprisonment of either description for a term which may extend to three
months, or with fine which may extend to five hundred rupees, or with both.

442. House-trespass. Whoever commits criminal trespass by entering into or remaining in

any building, tent or vessel used as a human dwelling or any building used as a place for
worship, or as a place for the custody of property, is said to commit "house-trespass".
Explanation. The introduction of any part of the criminal trespasser's body is entering
sufficient to constitute house-trespass.

443. Lurking house-trespass. Whoever commits house-trespass having taken precautions

to conceal such house-trespass from some person who has a right to exclude or eject the
trespasser from the building, tent or vessel which is the subject of the trespass, is said to
commit "lurking house-trespass".

444. Lurking house-trespass by night.-Whoever commits lurking house-trespass after

sunset and before sunrise, is said to commit "lurking house-trespass by night".

448. Punishment for house-trespass. Whoever commits house-trespass shall be punished

with imprisonment of either description for a term which may extend to one year, or with
fine which may extend to one thousand rupees, or with both.

449. House-trespass in order to commit offence punishable with death.- Whoever

commits house-trespass in order to the committing of any offence punishable with death,
shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term
not exceeding ten years, and shall also be liable to fine.450. House-trespass in order to
commit offence punishable with imprisonment for life. Whoever commits house-trespass
in order to the committing of any offence punishable with 1 [imprisonment for life], shall be
punished with imprisonment of either description for a term not exceeding ten years, and
shall also be liable to fine.

451. House-trespass in order to commit offence punishable with imprisonment. Whoever

commits house-trespass in order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either description for a term which
may extend to two years, and shall also be liable to fine; and if the offence intended to be
committed is theft, the term of the imprisonment may be extended to seven years.

448. Punishment for house-trespass. Whoever commits house-trespass shall be punished

with imprisonment of either description for a term which may extend to one year, or with
fine which may extend to one thousand rupees, or with both.
449. House-trespass in order to commit offence punishable with death.- Whoever
commits house-trespass in order to the committing of any offence punishable with death,
shall be punished with 1 [imprisonment for life], or with rigorous imprisonment for a term
not exceeding ten years, and shall also be liable to fine.

450. House-trespass in order to commit offence punishable with imprisonment for life.
Whoever commits house-trespass in order to the committing of any offence punishable
with 1 [imprisonment for life], shall be punished with imprisonment of either description
for a term not exceeding ten years, and shall also be liable to fine.

451. House-trespass in order to commit offence punishable with imprisonment. Whoever

commits house-trespass in order to the committing of any offence punishable with
imprisonment, shall be punished with imprisonment of either description for a term which
may extend to two years, and shall also be liable to fine; and if the offence intended to be
committed is theft, the term of the imprisonment may be extended to seven years.

CRIMINAL MISAPPROPRIATION:

INTRODUCTION:For a crime to be committed, there has to be a presence of both actus

reus and mens rea, which essentially means the physical state of a person and the mental
state of the person.

Now while we talk about the intention of the criminal, one must not forget the fact that
every criminal has a mala fide intention (except in some cases) where he/she has some
hidden malice set aside which leads him to committing the crime.

Today, we are going to explore Section 403 and Section 405 of the Indian Penal Code,
1860.

Section 403 talks about the Criminal Misappropriation of Property, while Section 405 talks
about the Criminal Breach of Trust.

Criminal Misappropriation of Property

Section 403 of the Indian Penal Code, 1860 defines Criminal Misappropriation of Property
as, Whoever dishonestly mis-appropriates or converts to his own use any movable
property, shall be punished with imprisonment of either description for a term which may
extend to two years, or with fine, or with both.
 Criminal Misappropriation of Property as defined above could be broken down to the
transfer of property from the transferor to the transferee in a dishonest fashion/manner for
their own benefit, be it monetary or otherwise.

The Criminal misappropriation of property was developed from the concept of theft. In
order to held guilty of theft, taking away of property from the possession of owner is
necessary but in criminal misappropriation it is not so required. Hence, the offence is very
near to theft yet is not exactly the same of the offence of theft.

To constitute the offence of misappropriation the subsequent ingredients must be

established: -

(1). Dishonest intention

(2). the accused misappropriated that property and converted the same to his own use

(3). the movable property belonged to the complainant

1. Dishonest Intention

It plays a very important role in the criminal misappropriation of property. It is not

necessary that dishonest intention should be present at the time of getting possession of
the property, the possession of the property may come innocently or lawfully but
subsequent change of intention and utilisation of property for his personal use bring the
act under the category of criminal misappropriation.

Illustration (a) - A takes the property belonging to Z out of Z's possession, in good faith,
believing that the property belonging to him at the time of taking. But after he discovered
his mistake, he misappropriates the property for his own use, he will be guilty of an offence
under this section.

Dishonest intention to misappropriate the property is either permanent or temporary in

nature as given under explanation-1 of S.403.

2. Misappropriation or Conversion of property for own use

There must be actual misappropriation of property of the thing. If an accused found a thing
and merely retain it in his possession, it will not be considered an offence until he
misappropriates it for his own use.
 Illustration- A finds a valuable ring on the road not knowing to whom it belongs. He sells it
immediately without attempting to discover the owner. He will be guilty of an offence under
this section.

To make the person guilty of criminal misappropriation, there should be an owner of that
property. There is no criminal misappropriation of things which has abandoned. Where the
property is abandoned, anyone finds and take it to acquire a right over it, will be good even
as against the former owner.

3. The property must be movableThe misappropriation must be of movable property and in

possession of someone else. The word "movable property" is also defined under S.22 of
IPC which includes the corporeal property of every description, except land and things
attached to the earth. It does not include growing crops or standing timber but as soon as
they are severed, they become movable property and capable of theft and
misappropriation of that property which means it should be entirely disconnected with
land.

In the case of Queen v. Bissessur Roy, a servant receiving money on behalf of the master
and then misappropriates it, he considered to commits the offence of criminal
misappropriation.

Finder of goods- The true owner of lost movable property is presumed to have lost
possession but not ownership of the property. Finder of the property gets the good title but
not the ownership.

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.

Section 404. Dishonest misappropriation of property 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.

Difference between Theft and Criminal Misappropriation of Property -

1.The offence of theft is defined under S. 378 of IPC and the offence of criminal misappropriation
of property is defined under S. 403 of IPC.

2.In the case of theft, from its initial it is wrongful but in criminal misappropriation of property it is
lawful and innocent but with subsequent change of intention it converted into unlawful taking.

3.In the case of theft, there is invasion of possession of another person by wrongdoer without their
consent but in criminal misappropriation the offender is already in possession and creates an
offence when they unlawfully misappropriate it.

4.In theft, mere moving of a thing is an offence but in criminal misappropriation it is not.

5.In theft, property is moved without the consent of owner where as in the case of criminal
misappropriation of property there might be possession of property with consent of the owner.

6.Dishonest intention is seeming in both. In theft, it is shown when there is actual moving of
property but in criminal misappropriation it is affected by actual misappropriation.

Criminal Breach of Trust

S.405 IPC- 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 wilfully suffers any other person so to do, commits "criminal breach
of trust".

In this a relationship is created between the transferor and transferee, where under the transferor
remains the legal owner of the property and the transferee has only the custody of the property for
the advantage of the transferor himself or somebody else.

To constitute the offence of criminal breach of trust following subsequent ingredients must be
established-
1.the accused must be entrusted with property or with dominion over property

2.the person so entrusted must-

3.dishonestly misappropriate or convert that property to his own use, o

4. dishonestly use or dispose of that property or willfully suffer any other person to do so

5.in violation of any legal directions

6.any legal contract.

Dishonest intention to misappropriate is a crucial fact to be proved to bring the charge of criminal
breach of trust. Any breach of trust is not an offence until it is intentional. As we know that mere
retention of goods without misappropriation does not constitute to criminal breach of trust.

In the case of State of Gujarat v. Jaswantlal Nathalal, the accused was allotted certain bags of
cement by the government on the condition for a specific performance of a construction work.
However, he transfers certain portion of cement to different area of subject and the contractor did
not use cement for the authorised purpose alone. The Supreme Court held that they break the
entrustment of contract between them.

Punishment for Criminal Breach of Trust-

The punishment for criminal breach of trust is prescribed under section 406 of IPC which may
extend to three years of imprisonment or fine or both

Aggravated Forms of Criminal Breach of Trust

Section 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.

Section 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.

Section 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 criminal breach of trust in respect of that property, shall be punished with 1
[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.
Difference between Criminal Misappropriation and Criminal Breach of Trust-

1. The offence criminal misappropriation of property is defined under S. 403 of IPC whereas the
offence of criminal breach of trust is defined under S. 405 of IPC.

2.In criminal misappropriation the property comes into the possession of accused in some natural
manner whereas in criminal breach of trust possession of property comes either by expressed or
implied entrustment or by some dominion. And there is some fiduciary relationship between them.

3.In criminal misappropriation, property can be only movable property whereas in criminal breach
of trust property can either be movable or immovable property.

4.In criminal misappropriation of property, there is no contractual relationship between owner the
property and offender whereas in criminal breach of trust there is fiduciary and contractual
relationship between them.

5. The punishment in criminal misappropriation of property is of imprisonment which may extend

to 2yrs or fine or both whereas punishment in criminal breach of trust is of imprisonment which
may extend to 3yrs, or with fine or with both.