criminal misappropriation of property

Section 403 and Section 404 of the Indian Penal Code, 1860 deals with the

provision related to criminal misappropriation of property. Section 403 of the

Indian Penal Code talks about the Dishonest misappropriation and the

prescribed punishment under this offense while Section 404 of the Indian Penal

Code deals with the provision related to criminal misappropriation of a deceased

person’s property.

Essential Ingredients of Section 403 of IPC

To make a person liable for an offence of Criminal Misappropriation, the
following essential ingredients must be fulfilled:

 The property must be of another person: The property must be of

another person, meaning to say, the owner of the property should not
come under the definition of ‘another person’. The property must
belong to its owner and dishonestly misappropriated by another person
to satisfy his own purpose.
For example, Ram took a red car belonging to Shyam by mistake or
unknowingly but returns the same when he found that the real owner of the car
is Shyam, then there is no misappropriation of the property but if Ram does not
return the car even after knowing that the car belonged to Shyam, then Ram
committed the offense of misappropriation of property.

In the case of U. Dhar vs The State of Jharkhand (2003), the Supreme Court of
India held that any dispute related to the recovery of money is always of civil
nature and criminal complaint in this regard is not maintainable.

Essential Ingredients of Section 404 of IPc

To make a person liable for an offence mentioned Under Section 404 of the

Indian Penal Code, 1860, the following essential ingredients must be fulfilled:

 The property must be movable in nature or must be a movable

property;
 Such property must be in the possession of the deceased person at the
time of the death of such person;
 The offender converted it or misappropriated it for his own use;
 The accused must have dishonest intention while committing such a
crime.

Criminal Breach of Trust

Under Section 405 of the Indian Penal Code, 1860, when a person is

entrusted with the property or that person has power or dominion over

that property, dishonestly misappropriated or uses that property to

satisfy his own purpose or to capitalise it for one’s own use, or disposes

of that property is contrary to a law that prescribes how to discharge

such trust or in violation of any contract, express or implied, or willfully

directed any person to do so, has committed the offence of Criminal

Breach of Trust.

Essential Ingredients of Section 405 of IPC

To make a person liable for an offence of Criminal Breach of Trust, the following
essential ingredients must be fulfilled:


 o Entrustment: As per the case of Surendra Pal Singh Vs. The
State of Uttar Pradesh (2017), entrustment means handling
over the property or giving them control over the property
from one person to another so that the person on whose
behalf the property is transferred remains the owner of that
property. To constitute an offence of criminal breach of trust,
the essence of word entrustment is a must. The interpretation
of this Section is very wide as it takes servants, clerks,
business partners, or any other person who is capable of
holding a position of trust, under its ambit.
o Such entrustment of the property must be in trust: In case
of Ramaswami Nadar vs The State of Madras (1957), the apex
court held that to constitute an offence of Criminal Breach of
Trust or to make any person liable under Section 405 of the
Indian penal Code, 1860, the essence of word entrustment is
a must. There must be an entrustment of property. The
defendant must go through with the trust and possess the
property with an authority.
o Dominion over the property: The domain is the superior or the
fullest right over goods or property. The domain includes the
right over goods or property as well as the possession of the
property and also includes the right to use that property. It is
a type of absolute and complete ownership over the property,
but in certain circumstances, the government may seize the
property with or without any permission.
 Dishonest Misappropriation: To make a person liable for an offense of
Criminal Breach of Trust, the essence of dishonest misappropriation as
an essential ingredient is a must. Section 24 of the Indian Penal Code,
1860 defines ‘dishonesty’ as generating wrongful loss or wrongful gain
to a person. Misappropriate means using the property of another
person to satisfy one’s own greed. Hence, dishonest misappropriation
is a crucial fact that has to be proved to make a person liable for an
offense of Criminal Breach of Trust.
In the case of Mohammed Sulaiman vs Mohammed Ayub and Ors. (1964), the
Supreme Court of India held that Section 405 of the Indian Penal Code requires
doing something wrong to the property in form of, dishonestly misappropriating
or using the property to satisfy his own purpose or to capitalize it for one’s own
use, or dispose of that property is contrary to a law that prescribes how to
discharge such trust or in violation of any contract, express or implied. The apex
court also held that a mere dispute which is of civil nature does not attract the
provisions of this section.

Stolen Property
Section 410 states that a property whose possession has been

transferred by theft, extortion, or robbery and which has been criminally

misappropriated or in respect of which criminal breach of trust has been

committed, is considered a “stolen property”, where the transfer of it has

been made, or its misappropriation or breach of trust has been

committed, within or without India.

Essential Ingredients

Property should be Stolen Property

The property being received by a person must be a stolen property to constitute
an offence of receiving stolen property under the provisions of the Code. Property
whose possession is transferred by the five ways given in Section 410 is
considered a stolen property. Those are:

1. By theft;
2. By extortion;
3. By robbery;
4. By criminal misappropriation; and
5. By criminal breach of trust.

Dishonestly Receiving or Retaining Stolen

Property
Section 411 proposes that whoever dishonestly receives or retains a stolen
property, knowing or having reason to believe that such property is a stolen one,
shall be imprisoned for a term which may extend up to three years, or with fine,
or both

Habitually Dealing in Stolen Property

Section 413 states that any person who habitually receives or deals in a stolen
property, having knowledge or reason to believe that the property is a stolen one,
shall be punished with imprisonment for life, or with imprisonment of either
description for a term which may extend upto ten years, and shall also be liable
for fine.

Following ingredients shall be satisfied for making a person liable under Section
413:

 That the property in question is a stolen property;

 That the accused received that property;
 That the accused habitually deals in such property; and
 That the person did so having knowledge or reason to believe that the
property was stolen property.
The offence under this Section is cognizable, non-bailable and non-compoundable
and it is triable be a Court of session.

Cheating

Cheating is defined under Section 415 of the Indian Penal Code as

whoever fraudulently or dishonestly deceives a person in order to

induce that person to deliver a property to any person or to consent to

retain any property. If a person intentionally induces a person to do or

omit to do any act which he would not have done if he was not deceived

to do so and the act has caused harm to that person in body, mind,

reputation or property, then the person who fraudulently, dishonestly

or intentionally induced the other person is said to 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.

Punishment for Cheating

Cheating and Dishonestly Inducing Delivery of

Property
According Sec 420 of IPC when a person cheats and thereby dishonestly induces
the other person who is deceived to deliver any property to any other person or
makes, alters or destroys the whole or any part of a valuable security, or anything
which is signed or sealed, and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine. Sec 420 of IPC
is an aggravated form of cheating.

Simple cheating is punishable under Section 417 of IPC. Section 417 of IPC states
that whoever is held liable for the offence of cheating shall be punished with
imprisonment for a term which may extend to one year or with fine, or with both
fine and imprisonment.

In the case of Ishwarlal Girdharilal vs the State of Maharashtra, it was observed

by the Court that the word ‘property’ mentioned under Section 420 of IPC does
not necessarily include only those properties which have money or market value.
It also includes those properties which do not have a monetary value. In case a
property does not have a monetary value for the person who is in possession of
it but after being cheated by another person it becomes a property of some
monetary value for the person who gets possession of it by cheating then it can
be considered as an offence of cheating under Section 420 of the IPC and the
property will be considered as a property under Section 420 of the IPC.

In the case of Abhayanand Mishra v. State of Bihar, the appellant was a candidate
who applied for M.A. examination to Patna University for permission to appear in
the M.A. examination in English as a private candidate. He represented himself
to be a graduate who has already obtained his B.A. degree and wants to pursue
his M.A. degree from the University. Later, just before the commencement of his
entrance examination, it was discovered that the certificates presented by the
candidate for his M.A. entrance was forged and he did not actually obtain his B.A.
degree. The court held the candidate guilty of making a false statement about
him being a graduate as he did not obtain his B.A degree. He made an application
and deceived the University and hence, was guilty of attempting to cheat under
Section 420 of IPC as read with Section 511 of the IPC.

Cheating by Personation
Under Section 416 of IPC, cheating by personation is explained as if a person
cheats on someone by pretending to be a particular person, or if a person
knowingly substitutes a particular person for another, or represents a person to
be some other person then he is said to cheat by personation.

In the case of Sushil Kumar Datta vs State, the accused personated

himself as a scheduled caste candidate and appeared for the

examination of Indian Administrative Service. He was appointed in that

cadre because of his false representation of being a scheduled caste. It

was held by the court that he was guilty of the offence of cheating by

personation under Section 416 of IPC as he did not belong to scheduled

caste and falsely represented himself as scheduled caste and hence, his

conviction for cheating was held to be justified under the said section.

Mischief

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.

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)
 The change must lead to diminishing the value or utility.
 Similar was the judgement pronounced in the case of Nagendranath Roy
v. Dr. Bijoy Kumar Dasburma where the court observed that mere
negligence does not constitute mischief. However in certain situations when
facts indicate that intention to cause wrongful loss was present along with
the negligence causing damage will amount to mischief.
 In the case of Krishna Gopal Singh And Ors. v. the State Of U.P., 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.
  In Arjun Singh v. The State (AIR 1958 Raj 347) it has been observed
by this Court:”In order to establish the offence of mischief, it is essential
for the prosecution to establish that the accused must have an intention or
knowledge of likelihood to cause wrongful loss or damage to the public or
any person.”

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.

Nature of offence: The offence under this Section is non-cognizable, bailable,

compoundable, and triable by any Magistrate.

Intention or the knowledge of the act may result

in wrongful loss or damage (mens rea)
One of the most essential elements of all offences under IPC is that any crime is
composed of two parts- Mens Rea & Actus rea. Similarly, “Mens rea” is required
to be present in order to establish the offence of Mischief.

Mischief causing damage to the amount of fifty

rupees
Explanation: When a Mischief committed results in some pecuniary damage i.e.
the damage is quantifiable the magnitude of the punishment will depend upon
the amount of damage incurred.

Punishment: According to section 427 whoever commits any mischief causing

loss or damage to the amount of fifty rupees or upwards, will be subject to the
imprisonment of either description of a term with a maximum of two years, or
with fine, or with both.
Mischief by killing or maiming of animals of the
value of ten rupees
Explanation: Section 428 provides the punishment in case of mischief
committed upon any animal or animals of the value of ten rupees or upwards
which includes killing, poisoning, maiming or rendering that animal useless.

Punishment: It attracts the imprisonment of either description for a term

which may extend to two years, or with fine, or with both.

Criminal Trespass
Meaning of Criminal Trespass
According to Section 441 of The Indian Penal Code, whoever enters into property
in the possession of another with the intent to commit an offence or to intimidate,
insult or annoy any person in possession of such property, or having lawfully
entered into such property, but remains there with intent thereby to intimidate,
insult or any such person, or with an intent to commit an offence, is said to
commit ‘criminal trespass’.

House-trespass
Section 442 of IPC, defines house-trespass as committing criminal trespass by
entering into or remaining in any building, tent or vessel used as a human
dwelling, place of worship or as a place for the custody of the property. A place
of human dwelling does not always have to be a permanent resident of the
defendant, temporary residents like school or railway platforms also count as a
human dwelling.

Lurking house-trespass
Section 443 of IPC, deals with a further aggravation of house-trespass, known as
lurking house-trespass. The section defines this offence as committing house
trespass and taking precautions to conceal the offence of house-trespassing from
any person who has a right to exclude or eject the trespasser from the building
which is the subject of the trespass. In Prem Bahadur Rai v State, the court held
that unless active steps are taken by the accused to conceal his presence, no
charge under Section 443 can be made. Thus the ingredients of lurking house-
trespass would include:

Lurking house-trespass by night

Section 444 of IPC, talks about an aggravated form of lurking house-trespass, i.e
trespass committed at night. Any lurking house-trespass committed after sunset
and before sunrise fall within the ambit of this section. This offence is punishable
with imprisonment not exceeding three years and fine, according to Section
456 of IPC.

House-breaking
Housebreaking is also an aggravated form of house-trespass and implies forceful
entry into one’s house. Section 445 of IPC lays down 6 ways in which
housebreaking can occur, namely:

1. Through passage made by the house breaker himself;

2. Through any passage not used by any person other than the intruder;
3. Through any passage opened for committing an offence of
housebreaking which was not intended by the house occupier to be
open;
4. By opening any lock;
5. By using criminal force at either entrance or departure;
6. By entering or quitting any passage fastened against such entrance or
exit. The word ‘fasteners’ implies something more than being closed,
merely pushing of door shutters would not amount to house-breaking.

In Pullabhotla Chinniah case, the court held that the breaking open of a
cattle-shed in which agricultural implements are kept would also amount to
house-breaking. Further, making a hole in the wall to enter a house, using
a window to enter a house, assaulting the guard or doorkeeper to enter a
house, all amount to housebreaking and the accused will be liable for
imprisonment not exceeding 2 years and fine under Section 453 of IPC.
Dishonestly breaking open receptacle
containing property
Meaning and punishment for dishonestly breaking open receptacle containing
property are defined under Section 461 of IPC. The said section punishes whoever
dishonestly or with the intent of committing mischief, breaks or open any
receptacle or container used as storing place. The offence is cognizable, non-
bailable and triable by any magistrate and the punishment for the same may
extend up to 2 years, fine, or both. The ingredients of this offence would be:

1. There was a closed container or receptacle;

2. It contained property or the accused believed it contained property;
3. The accused intentionally broke opened the receptacle;
4. The accused did so dishonestly;
5. The accused did so with the intent to cause mischief.
The term ‘receptacle’ signifies all kinds of vessels and not only includes a safe
box, chest or closed package but also includes a room or a part of a room such
as a warehouse, or godown. The only condition is that such a vessel must be
closed by means of chain or bolt or fastened in any manner. The offence is said
to be completed as soon as the receptacle is broken or unfastened with dishonest
attention to steal or cause any other kind of mischief.