Criminal Breach of Trust: Distinguish it from (a) Theft and (b) Criminal Misappropriation (Indian Penal Code, 1860)
Where under a contract the accused was required by the complainant to print and hand over certain number of books without entrustment of manuscript, papers or any other material with the accused and the accused in breach of the contract did not make available certain number of books, there was no criminal breach of trust. At the best there was a breach of contract which is a dispute civil in nature. (K.L. Sachdeva, New Delhi v. Rakesh Kumar Jain, Varanasi, 1983 All. L.J. 1087).
The prosecution in cases of criminal breach of trust has to prove three things:
(i) That the accused was a public servant;
(ii) That he in such capacity was entrusted with the property in question or dominion over it and
(iii) That he committed the criminal breach of trust. In the case of criminal breach of trust, once it is shown that money was entrusted to the accused or was received by him for a particular purpose was not used for that purpose, and the same was not returned by him in accordance with his duty or if he failed to account for it, he will be presumed to have misappropriated the same.
In every case, the prosecution is not under obligation to prove the manner of misappropriation or conversion to his own use by the accused, the property entrusted to him. When the accused does not discharge the trust, in consequence of which he comes to have dominion over the property, then the misappropriation can legitimately be inferred against him. (State of Punjab v. Rattan Chand, 1984 Cri. L.J., NOC. 153, Punj. & Hry.)
The word “entrustment” connotes that the person holds the property in a fiduciary capacity. There can be no breach of trust when there has been no entrustment or dominion of the property on trust.
There must be dishonest misappropriation or .conversion to his own use of dishonest using or disposing of that property. If it is done in good faith there is no criminal breach of trust before criminal breach of trust by a partner is established it must be shown that the person charged has been entrusted with property or with dominion over the property.
In other words the offence of criminal breach of trust under S. 406 of the Penal Code is not in respect of property belonging to the partnership but is an offence committed by the person in respect of property which has been specially entrusted to such a person and which he holds in a fiduciary capacity. [Debabrata Gupta v. S.K. Ghosh, (1971)1 S.C.I. 134].
(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 appropriates them to his own use. A has committed criminal breach of trust; (b) A is a warehouse keeper. Z, going 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 an 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 lack of rupees to A, with directions to A to invest the same in Company’s paper.
A dishonestly disobeys the directions 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 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, 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 breach of trust.
(a) Theft and Criminal Breach of Trust:
In the former there is a wrongful taking of a movable property out of the possession of the owner, i.e., by stealth without the owner’s knowledge, but in the latter the property is given on trust or received on one’s behalf and instead of discharging the trust, it is dishonestly misappropriated or used or disposed of in violation of the law. The owner here parts with something in good faith but the person who takes it keeps the thing for himself.
In theft there is no prior lawful possession; the offences is completed as soon as the property is dishonestly taken away, but in criminal breach of trust the offender prior to the offence is himself in possession of the property and the offence is completed when he dishonestly converted the same to his own use.
Then in theft the property involved is a movable property, but in criminal breach of trust it may be any property. Criminal breach of trust is ordinarily punished with the same severity as theft, but where there is a greater degree of trust as in the case of a carrier, or a clerk or a servant entrusted with his master’s property or in the case of a public servant or banker, heavier punishment is provided under Sections 407, 408 and 409, 1.P.C.
(b) Criminal misappropriation and Criminal Breach of Trust:
1. In criminal misappropriation the property comes into the possession of the offender by some casualty or otherwise, and he afterwards misappropriates it. In the case of criminal breach of trust the offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or willfully suffers any other person to do so, instead of discharging the trust attached to it. (Ratan Lai).
2. In criminal misappropriation there is no contractual relationship, but there is such a relationship in criminal breach of trust
3. In criminal misappropriation there is the conversion of property coming into possession of the offender anyhow, but in criminal breach of trust there is the conversion of property held in fiduciary Offences against Property character.
4. A breach of trust includes criminal misappropriation, but the converse is not always true.