Ipc Notes 55r6w

Chapter XVII – Of Offences Against Property Section 378:- Theft Section 379:- Punishment for theft Section 380:- Theft in dwelling house, etc. Section 381:- Theft by clerk or servant of property in possession of master Section 382:- Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft Section 383:- Extortion Section 384:- Punishment for extortion Section 385:- Putting person in fear of injury in order to commit extortion Section 386:- Extortion by putting a person in fear of death or grievous hurt Section 387:- Putting person in fear of death or of grievous hurt, in order to commit extortion Section 388:- Extortion by threat of accusation of an offence punishable with death or imprisonment for life, etc Section 389:- Putting person in fear or accusation of offence, in order to commit extortion Section 390:- Robbery Section 391:- Dacoity Section 392:- Punishment for robbery Section 393:- Attempt to commit robbery Section 394:- Voluntarily causing hurt in committing robbery Section 395:- Punishment for dacoity Section 396:- Dacoity with murder Section 397:- Robbery or dacoity, with attempt to cause death or grievous hurt Section 398:- Attempt to commit robbery or dacoity when armed with deadly weapon Section 399:- Making preparation to commit dacoity Section 400:- Punishment for belonging to gang of dacoits Section 401:- Punishment for belonging to gang of thieves Section 402:- Assembling for purpose of committing dacoity Section 403:- Dishonest misappropriation of property Section 404:- Dishonest misappropriation of property possessed by deceased person at the time of his death Section 405:- Criminal breach of trust Section 406:- Punishment for criminal breach of trust Section 407:- Criminal breach of trust by carrier, etc. Section 408:- Criminal breach of trust by clerk or servant Section 409:- Criminal breach of trust by public servant, or by banker, merchant or agent Section 410:- Stolen property Section 411:- Dishonestly receiving stolen property Section 412:- Dishonestly receiving property stolen in the commission of a dacoity Section 413:- Habitually dealing in stolen property Section 414:- Assisting in concealment of stolen property Section 415:- Cheating Section 416:- Cheating by personation Section 417:- Punishment for cheating Section 418:- Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect

Section 419:- Punishment for cheating by personation Section 420:- Cheating and dishonestly inducing delivery of property Section 421:- Dishonest or fraudulent removal or concealment of property to prevent distribution among creditors Section 422:- Dishonestly or fraudulently preventing debt being available for creditors Section 423:- Dishonest or fraudulent execution of deed of transfer containing false statement of consideration Section 424:- Dishonest or fraudulent removal or concealment of property Section 425:- Mischief Section 426:- Punishment for mischief Section 427:- Mischief causing damage to the amount of fifty rupees Section 428:- Mischief by killing or maiming animal of the value of ten rupees Section 429:- Mischief by killing or maiming cattle, etc., of any value or any animal of the value of fifty rupees Section 430:- Mischief by injury to works of irrigation or by wrongfully diverting water Section 431:- Mischief by injury to public road, bridge, river or channel Section 432:- Mischief by causing inundation or obstruction to public drainage attended with damage Section 433:- Mischief by destroying, moving or rendering less useful a light-house or sea-mark Section 434:- Mischief by destroying or moving, etc., a land-mark fixed by public authority Section 435:- Mischief by fire or explosive substance with intent to cause damage to amount of one hundred or (in case of agricultural produce) ten rupees Section 436:- Mischief by fire or explosive substance with intent destroy house, etc. Section 437:- Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons burden Section 438:- Punishment for the mischief described in section 437 committed by fire or explosive substance Section 439:- Punishment for intentionally running vessel aground or ashore with intent to commit theft, etc. Section 440:- Mischief committed after preparation made for causing death or hurt Section 441:- Criminal tres Section 442:- House-tres Section 443:- Lurking house-tres Section 444:- Lurking house-tres by night Section 445:- House-breaking Section 446:- House-breaking by night Section 447:- Punishment for criminal tres Section 448:- Punishment for house-tres Section 449:- House-tres in order to commit offence punishable with death Section 450:- House-tres in order to commit offence punishable with imprisonment for life Section 451:- House-tres in order to commit offence punishable with imprisonment Section 452:- House-tres alter preparation for hurt, assault or wrongful restraint Section 453:- Punishment for lurking house-tres or house-breaking Section 454:- Lurking house-tres or house-breaking in order to commit offence punishable with imprisonment

Section 455:- Lurking house-tres or house-breaking after preparation for hurt, assault or wrongful restraint Section 456:- Punishment for lurking house-tres or house-breaking by night Section 457:- Lurking house-tres or house-breaking by night in order to commit offence punishable with imprisonment Section 458:- Lurking house-tres or house-breaking by night after preparation for hurt, assault, or wrongful restraint Section 459:- Grievous hurt caused whilst committing lurking house-tres or house-breaking Section 460:- All persons tly concerned in lurking house-tres or house-breaking by night punishable where death or grievous hurt caused by one of them Section 461:- Dishonestly breaking open receptacle containing property Section 462:- Punishment for same offence when committed by person entrusted with custody

Notes Theft UNIT-III Question No.19:- Discuss the ingredients of theft with the help of decided case? Also distinguish between theft and extortion. Answer :- Theft is an offence in which moveable property of a person is taken away without his consent. Such property must be taken away dishonesty. Thus in theft there would be a moveable property. It should be taken dishonestly and without the consent of the owner. Theft has been defined in Section 378 of IPC. Simultaneously the punishment for the commitment of act of theft has also been defined in Section 379 of IPC. DEFINITION OF THEFT U/S 378 OF IPC “ Whoever intending to take dishonestly any moveable 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 OF DEFINITION 1. There must be a dishonest intention of a person to take the property. 2. Removal of movable property. 3. Such movable property must be taken away. 4. The property must be taken away from the possession of a person. In other words there must be a possession of that property. 5. Such property must be taken away without the consent of such person. A. Dishonest Intention:- It is also called as malafied intention which can be representation in the form of mensrea. This mensrea is the base of the theft. The petitioner must prove that a thing was taken away with the dishonest intention. However intention is a mental element which is difficult to prove but circumstantial evidences are considered for this purpose. The main measurement of

dishonest intention is to make a wrongful loss to another person then such act is considered to be done with dishonest intention. B.MOVABLE PROPERTY:- The subject of theft is movable property. Immovable property cannot be stolen. A movable property is a property which is able to move easily or which is not immovable. It means the thing permanently attached to the earth is immovable property, is not the subject of theft. It becomes capable of being the subject of theft when it is severed from the earth. C. Be taken away out of Possession of another Person:- The property must be in the possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at a large but there is a theft of tamed animals. ILLUSTRATION :- ‘A’ finds a ring lying on the road which was in the possession of any person. A by taking it commits no theft, though he may commit criminal misappropriation of property. D. IT SHOULD BE TAKEN WITHOUT CONSENT OF THAT PERSON:- The consent may be express or implied and may be given either of the person in possession, or by any person having for that purpose express or implied authority. ILLUSTRATION NO. 1:- ‘A’ being on friendly with Z, goes into Z’s library in Z’s absence, and takes away a book without Z’s express consent for the purpose of merely reading it (with the intention of returning it)Here it is probable that A may have conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A has not committed theft. ILLUSTRATION NO.2:- ‘A’ asks charity from Z’s wife, she gives A money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z’s wife is authorised to give away alms. If this was A’s impression. A has not committed theft. ILLUSTRATION NO.3 :- ‘A’ is the paramour of Z’s wife and she gives A, the valuable property, which A knows that these belongs to her husband Z, although she has not authority from Z to give the same. If takes the property dishonestly, he commits theft. ILLUSTRATION NO.4:- A sees a ring belonging to Z lying on the table in Z’s house. A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the intention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A at the time of first moving the rings, commits theft. PUNISHMENT FOR THE OFFENCE OF THEFT The punishment for committing theft in Indian Penal Code under section 379 for offence of theft is an imprisonment which may extend to three years or with fine or both. EXTORTION U/S 383 According to Section 383 of IPC,” Whoever intestinally 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 valuable security commits, “Extortion”. ESSENTIALS OF EXTORTION 1. There must be a show of force or threat. 2. Such force or threat should be in the form of fear of injury.

3. Such injury may be for the person who is put under the fear or for any other persons in which the former person has interest. 4. Such force should be shown with a view to take a thing for property or valuable security or sign or seal or a document. 5. There must be dishonest intention. Thus if the above elements are present then it is an offence of extortion, dishonest intention is also an essential element of extortion. Dishonest intention is measured from the circumstances and facts of each case. Anything taken from a person at the point of pistol is an e.g. of extortion. ILLUSTRATIONS :I) ‘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. II) ‘A’ threatens Z that he will keep Z’s child in wrongful confinement unless Z will sign and deliver to A a promissory note binding Z to pay money to ‘A’. Z signs and delivers the note. ‘A’ has committed the offence of extortion. PUNISHMENT FOR THE OFFENCE OF EXTORTION A has committed the offence of extortion. Punishment for EXTORTION under section 384 of IPC,” 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. DIFFERENCE BETWEEN THEFT & EXTORTION THEFT EXTORTION 1. The offender’s intention is to Consent is obtained by putting the Take away something without person, in possession of property. The owner’s consent. In fear of injury to himself or to any Other person, i.e. there is wrongful Obtaining of consent. 2. Theft is limited only to moveBoth movable and immovable Able property. Property may be the subject of the Offence of extortion. 3.There is no element of force There is the element of force, for In theft. Property is obtained by putting a Person in fear of injury to that Person, or to any other. 4. The offender takes the Delivery of property as distinct from Property without the ownertaking away property is of its Ship’s consent and hence essence. There is no delivery by the Owner.

Project on theft - Section 378 of IPC INTRODUCTION In common usage, theft is the taking of another person's property without that person's permission or consent with the intent to deprive the rightful owner of it. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud. In some jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny. For the offence of theft there is punishment of imprisonment of either description which may extend to 3 years, with fine, or both according to the Indian Penal Code. The offence of theft is even though cognizable [1] and nonbailable [2] it is compoundable[3]. So according to the criminal justice jurisprudence when the offence is compoundable then generally it cannot be term as serious category of an offence. Otherwise also the seriousness and gravity of an offence can be assessed by the fact and circumstances involve in any incidence of crime. Every citizen in a free country is having right to do fair, law based analysis of any judgment given by any courts in India without challenging the integrity of the person working as judge. According to SECTION 378 OF INDIAN PENAL CODE, Whoever, intending to take dishonestly any moveable 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. OBJECTIVE Theft literally means taking away someone’s property without his or her consent. The main objective of this project is to analyse the legal approaches to criminalise theft. It analyses the existing criminal law provisions to evaluate how far these provisions are effective. Section 379 is all about punishment for theft. This study is to understand how section 379 has played a role in curtailing the offence of theft in our Country. CONTENT ANALYSIS Section 378 of IPC reads: Whoever, intending to take dishonestly any moveable 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. 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 moving effected by the same act which affects the severance may be a theft. Explanation 3 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 4 A person, who by any means causes an animal to move, is said to move that animal, and to move everything which,

in consequence of the motion so caused, is moved by that animal. Explanation 5 The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authority either express or implied. INGREDIENTS The essential ingredients of the offence of theft as embodied in s 378, IPC, is well-explained by the Supreme Court in a leading decision in KN Mehra v. State of Rajasthan[4]. The alleged theft was of an aircraft, which belonged to the government (Indian Air Force Academy). Two youngsters, Mehra and Phillips, were cadets on training in the Indian Air Force at Jodhpur. Phillips was discharged from the Academy on 13 May 1952 for misconduct. On 14 May 1952, he was due to leave Jodhpur by train. His friend Mehra was due for flight in a Dakota, as part of his training along with one Om Prakash, a flying cadet. The authorised time to take off flight was between 6 am and 6.30 am on the morning of 14th May. Mehra and Phillips took off, not a Dakota but a Harvard T-22, before the prescribed time at 5 am without authorisation and without observing any of the formalities, which were pre-requisites for an aircraft flight. On the forenoon of the same day, they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan border. On 16 May 1952 at 7 am, both of them met the Indian Commissioner in Pakistan at Karachi, and informed him that they had lost their way and force-landed in a field and that they had left the plane there. They requested his help to go back to Delhi. The Indian High Commissioner arranged for both of them to be sent back to Delhi in another plane. While they were on their way to Delhi, the plane stopped at Jodhpur and they were arrested and prosecuted for the offence of theft. One of the main contentions of the accused was that if they had the inclination to take the aircraft to Pakistan, they would not have ed the Indian High Commissioner at Karachi later. But the prosecution succeeded in proving that this apparent innocent move did not necessarily negative their intention at the time of taking off. It may be that after reaching Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon them and they gave it up. It was enough to constitute the offence that they had the dishonest intention at the commencement of the journey. The fact that they took off Harvard T-22 plane rather than the allowed Dakota, and left India at 5 am instead of the scheduled time of 6 am, without waiting for Om Prakash, and that they also refused to respond to the wireless messages from Indian aerodrome authorities at 11 am, showed that they had the dishonest intention to take off a Harvard T-22 plane. The court analysed the offence of theft under s 378 and hence the essential elements to constitute theft are as follows. 1. It should be a movable property; 2. In the possession of anyone; 3. A dishonest intention to take it out of that person’s possession; 4. Without his consent and 5. A moving in order to such taking. The accused, in this case, were held guilty of the offence of theft under s 378 of IPC and were sentenced to undergo imprisonment by the trial court for 18 months and a fine of Rs 750 with simple imprisonment, in default of payment of fine for a further term of four months. In the final appeal, the Supreme Court reduced the sentence of imprisonment of the appellant KN Mehra to the period already undergone. MOVABLE PROPERTY

Movable property is defined in sec 22 as including ‘corporeal property of every description except land and things attached to the earth, or permanently fastened to anything which is attached to the earth’. Any part of the earth whether it be stones, or clay or sand or any other component when severed from the earth is moveable property and is capable of being the subject of theft. A house cannot be the subject of theft, but there may be theft of its materials. Cart-loads of earth, or stones[5] carried away from the land of another are subjects of theft. As per the Explanations 1 and 2 attached to Section 378 of IPC, things attached to the land may become movable property by severance from the earth, and that the act of severance may of itself be theft. Human body whether living or dead (except bodies, or portions thereof, or mummies, preserved in museums and scientific institutions) is not movable property. POSSESSION The main right of the individual that is sought to be protected under ss 378 and 379 is undoubtedly his possession of the movables. The word ‘possession’ is not defined in the IPC, though its nature is one aspect indicated in s 27, wherein it is said that: When property is in the possession of a person’s wife, clerk or servant, on of that person, it is in that person’s possession within the meaning of this Code. Constructive possession In certain circumstances, a person who has no actual physical control over a thing will be deemed to have possession in the eye of law, which is called constructive possession. This is also called de jure possession or possession in law. t Possession Where there are several t owners in t possession and any one of them dishonestly takes exclusive possession, he will be guilty of theft[6]. A co-owner of movable property with another, whose share is defined, can be guilty of theft, if he removes the t property without consent of the co-owner[7]. Similarly, if a coparcener dishonestly takes the separate property of another coparcener, he will be guilty of theft[8]. But the removal of even the whole of the crop by a tenant holding land from zamindar on a varam tenure without delivering it to the zamindar his share of the crop, does not constitute theft[9]. Mere custody will not amount to possession This principle is expressly recognised in s 27, IPC. So, where a lady who wanted a railway ticket, handed the money to a stranger, who was near to the window of the ticket office, that he might procure a ticket for her, and he ran away with the money, this was held to be theft, as she never parted with the dominion over the money and merely used his hand in place of her own[10]. Temporary deprivation or Dispossession is also theft In Pyare Lal Bhargawa v. State of Rajasthan[11], the accused was a superintendent in a government office. At the instance of somebody, he got a file from the secretariat through the clerk and took the file to his house for a day and made it available to a person to facilitate the removal of some papers and the insertion of some. Thereafter, the file was replaced. The question before the Supreme Court was whether the act amounted to theft. The Supreme Court held that to commit theft, one need not take movable property permanently out of the possession of another, with the intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of another person, though he intended to return it later. When the file was unlawfully taken away from the department, he deprived the department of the possession of the file and caused wrongful loss to the department. So, it was held that it amounted to an offence under s 378, IPC. The Supreme Court, in line with the Pyare Lal dictum, in State of

Maharastra[12], held that the transfer of movable property without consent of the person in possession need not be permanent or for a considerable length of time nor is it necessary that the property should be found in possession of the accused. Even a transient transfer of possession is sufficient to meet the requisites of theft. DISHONEST INTENTION Intention is the gist of the offence. It is the intention of the taker at the time when he removes the article that determined whether the act is theft or not. The intention to take dishonestly exists when the taker intends to cause ‘wrongful gain’ to one person and ‘wrongful loss’ to another. Wrongful gain or wrongful loss must be involved in dishonesty[13]. Where, therefore, the accused acting bona fide in the interest of his employees, finding a party of fishermen poaching on his master’s fisheries, took charge of the nets, and retained possession of them, pending the orders of his employers, it was held that the accused was not guilty of theft[14]. When dishonest intention is totally absent, there is no theft[15]. Taking another man’s property believing, under a mistake of fact and in ignorance of law, that he has the right to take, therefore, does not amount to theft[16]. If the act done is not animo-furandi[17], it will not amount to theft. WITHOUT CONSENT The taking must be without the consent of the person in possession. There can be no theft where the owner actually consents to or authorises the taking. Thus, where a debtor gives up property to his creditor and subsequently discovering that the debt was time-barred, charged the latter with theft, the same was held unsustainable in Musumat Piari Oulaiy[18]a. The consent may be express or implied, may be given bt the person in possession or by any person having for that authority either express or implied. MOVING OR TAKING In addition to all the other ingredients, there must be moving of the property with an intention to take it. As the essence of the offence consists in the fraudulent taking, that taking must have commenced. The English equivalent term is asportation, which implies something more than mere moving, which alone is necessary under the IPC. For instance, where a man lifted up and set on end a package of linen, which was lying in a wagon and cut the wrapper to get at its contents, but was apprehended before he had taken anything out; and where a pick-pocket got a purse out of the owner’s pocket, but was unable to carry it away, because it was attached to his pocket by a string, the judges held that there had been no theft ‘for a carrying away, in order to constitute a felony [there] must be a removal of the goods from the place where they were; and the felon must, for the instant at least, have the entire and absolute possession of them’[19]. However in the case of a post office letter carrier, the taking out of the bag in which the letters were carried during delivery, and placing it in his own pocket was deemed sufficient, the jury having found that he put the letter in his own pocket intending to steal it[20]. So it was held in the Madras decision Venkataswami[21], where a letter-sorter instead of handing a letter out for delivery in the usual course, secreted it on his person, that he might give it to the delivery peon himself with a view to sharing the postage payable by the addressee; the high court ruled that by this act he took the letter out of the possession of the post office authorities without their consent for a fraudulent purpose and therefore committed theft. THEFT BY OWNER OF HIS OWN PROPERTY Paradoxical as it would seem, there is nothing in law against an owner being held guilty of theft in respect of his own goods. Theft arises when there is dishonest removal of a thing from the possession of a person who has a rightful claim to be in possession of it. Where the accused took a bundle belonging to himself, which was in the possession of a constable and for which the constable was able, it was held that the constable had special property in it and the accused was therefore guilty of theft. A person who removes his own cattle after attachment from the person to whom they have been entrusted without having recourse to the court under whose orders they were entrusted is guilty of theft. Similarly, a person who removes his cattle from pound without paying the legitimate fees to the poundkeeper comes becomes guilty of theft. THEFT AS BETWEEN HUSBAND AND WIFE

There is no presumption in India, that a husband and wife constitute one person and as such there can be no prosecution for theft as between them. Hence, if a wife removes her husband’s property from his house with dishonest intention, she will be guilty of theft. In this case, a Hindu wife, during her husband’s absence, removed his property from his house to that of her paramour. On the husband’s return, he charged them both with theft and they were convicted of that offence by the trial court. The conviction was upheld by the Madras High Court. There is no presumption of law that the wife and husband constitute one person in India for the purpose of criminal law. Theft is an offence against property. And where there is no community of property, each may commit theft in regard to the property of the other. The question is one of intention. If the wife, removing the husband’s property from his house, does so with dishonest intention, she is guilty of theft. A spouse, therefore, may be guilty of theft if he/she dishonestly removes exclusive property of the other. DIFFERENCE BETWEEN THEFT AND ROBBERY S.390 of the IPC states that in all robbery cases, there is either extortion or theft. Theft is ‘robbery’ if, in order to commit 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. 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. DIFFERENCE BETWEEN THEFT AND EXTORTION Section 383 states: 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 deliver to any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits extortion. As To Consent: In extortion, consent is obtained by putting the person in possession of property in fear of property in fear of injury to himself or any other person. In theft, the offender’s intention is to take the property without the owner’s consent. There is no element of force in theft. Property: In Extortion , both moveable and immoveable property may be the subject of the offence. In theft it is limited only to moveable property. Element Of Force: There is element of force in the offence of extortion as the property is obtained by putting a person in fear ofinjury to that person or any other. There is no element of force in theft. Scope: Extortion is wider in scope as it coved any kind of property, valuable security or anything that may be converted into valuable security. Theft covers only the cases of moveable property. Taking Of Property: In extortion, threat may be by one person and the property may be received by another person. In theft, property must be move by person in order to such taking.

Effect: In extortion, the property is delivered. In theft, there is dishonest removal of property. PUNISHMENT FOR THEFT According to SECTION 379 OF INDIAN PENAL CODE, Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. According to this section, any person who commits the offence of theft will be punished with an imprisonment for a term of three years or with a fine specified by the court or with both. A person can be punished under this section only if he has commits theft as per section 378. FORMS OF THEFT According to SECTION 380 OF INDIAN PENAL CODE, 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. For attracting s 380 it is necessary to prove that ‘theft’ was committed in a ‘building’, ‘tent’ or ‘vessel’ used as ‘human dwelling’ or for ‘custody of property’. The expression ‘building’ conveys a structure, whether covered or uncovered, made of any material whatsoever. The term postulates some structure intended for affording some sort of protection to the persons dwelling inside it or for the property placed there for custody. Therefore a structure which does not afford such a protection, though it serves as a fencing or other means of preventing ingress or egress, cannot be a ‘building’ within the meaning of s 380. According to SECTION 381 OF INDIAN PENAL CODE, Whoever, being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. To attract this section, not only the elements should be proved but also that the accused was a clerk or servant or employed in the capacity of a clerk or servant and he has removed the movable property out of possession of his master or employer. A servant or clerk, thus, has more easy opportunity for stealing than other persons would. A clerk of the tahsil office, who took official papers out of possession of his fellow clerk without consent of the concerned tahsildar to show them to an advocate of one of the parties to the case, was held guilty under s 381. However, despite the fact that it is considered an aggravated form of theft, the Gujarat High Court, taking into consideration the harsh circumstances under which an employee committed theft of a petty sum, took a lenient view of the matter. According to SECTION 382 OF INDIAN PENAL CODE, Whoever commits theft, having made preparation for causing death, or hurt, or restrain, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. The aggravating fact in this section is that the accused who went to steal was also prepared to cause personal injury or intimidation of the victim, if, the situation so warranted. The preparation may be in the nature of arming himself with a stick, knife or any other weapon, that is sufficient to cause harm or injury. It is important to note that mere preparation by a thief to cause harm indicated in the section is enough to bring him under the purview of s 382. It is neither necessary nor required under the section that hurt be caused or attempted to be caused. But if he, while

committing theft, causes hurt, he becomes liable for committing robbery. Section 382 is distinguished from that of robbery. If the accused goes beyond the preparation stage and actually causes hurt, injury, then it will amount to an offence of robbery. But, if it stops with preparation and the accused does not go beyond it, even if it was because there was no necessity to cause violence then it will be covered by this section. RELATED CASES Ø In Mahabir Singh v Commissioner of Police[22], the Supreme Court held that seizure of vehicle due to default in the payment of instalments stipulated under the mutually agreed schedule for payment attached to the agreement cannot be construed as theft. Ø In K.A. Mathai alias Babu & Anr. Vs. Kora Bibbikutty & Anr[23], the Hon'ble Apex Court had taken a view holding that in case of default to make payment of installments, Financier had a right to resume possession even if the hire purchase agreement does not contain a clause of resumption of possession, for the reason that such a condition is to be read in the agreement. In such an eventuality, it cannot be held that the Financer had committed an offence of theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and obligations accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that regard from which it cannot be inferred that Financer had resumed the possession of the vehicle with a guilty intention. Ø In the case of Biswanath Patra vs Divisional Engineer[24], it was held that the theft of electricity would not be charged under section 379 of Indian Penal Code because When there is a specific/special law covering the question of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379, IPC will not be applicable. Special law will always prevail over the general law. Ø In the case of Kesavan Nair vs State Of Kerala[25], it was held that an intention of the accused to 'take' any movable property out of possession of another person without the consent of the other person and also an intention to cause wrongful gain by unlawful means was necessary to be charged under Section 378 IPC. A mere removal of a movable property by a person from possession of another without the consent of the latter with the sole intention to evict him from a building will not be sufficient to make out an offence under Section 380 of IPC. Therefore the Charge against the accused in this case is quashed. Ø In the case of Charanjit Singh Chadha And Ors. vs Sudhir Mehra[26], it was held that the owner re-possessing the vehicle delivered to the hirer under the hire purchase agreement will not amount to theft as the vital element of 'dishonest intention' is lacking. The element of 'dishonest intention' which is an essential element to constitute the offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer. The repossession of goods as per the term of the agreement may not amount to any criminal offence. The agreement which they had entered into specifically gave authority to the appellants to re-possess the vehicle and their agents have been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire purchase agreement, the appellants have continued to be the owner of the vehicle and even if the entire allegations against them are taken as true, no offence was made out against them. Ø In the case of Bandrappa vs State By Gadigenur Police on 21 March ILR[27], it was held that if a person dishonestly removes any movable property out of the possession of any person without that person's consent, the said person would commit theft. The Explanation 1 to the said section says “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”. This explanation makes it further clear that, if the ore is removed from the earth, then it would be a subject-matter of theft. Illustration (a) to Section 378 of IPC makes it very clear that as soon as petitioner has severed the iron ore from the land in order to transport the same, it is to be said that he has committed a theft. In this view of the matter, the contention of the petitioner that the crime does not fall within the definition of 'theft' is liable to be rejected and therefore the accused is liable to be punished under section 379 of IPC.

Ø In the case of M/S. Sundaram Finance Ltd. vs Mohd. Abdul Wakeel And Another[28], it was held that if the applicant took possession of the vehicle under hire-purchase agreement, it cannot be said that he was guilty of theft because there was no intention to take the vehicle dishonestly. Thus, the essential ingredient of the offence of theft as per Section 378 of IPC was not there. Moreover the g of agreement implied consent to the right of taking the possession of vehicle on failure of payment of money. Therefore this is not an offence under section 379 of IPC since the essential ingredient of the section is missing. CONCLUSION The actus reus of theft is usually defined as an unauthorized taking, keeping or using of another's property which must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person with rightful possession of that property or its use. These ingredients are necessary to commit the offence of theft under section 378 of IPC. If any of these ingredients is not found, then it would not come under the purview of sec 378 of IPC and the accused cannot be punished under sec 379 of IPC.

Extortion and robbery OF EXTORTION Section 383-390 of Indian penal code deals with different types of extortion, where section 383 “whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induce the person so put in fear to any person any property to valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”. For instance A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. He has committed extortion. Thus we can find the elements of extortion. In fear of injury to that person or any other person Dishonestly inducement of person to put in fear To deliever any person ,property, of valuable security Or anything sighned which may be converted into a valuable security CASE REFERED In a very famous case JADUNANDAN SINGH AND OTHERS V. EMEMPEROR AIR 1941.PAR. 129. It was decided that what will be the criteria of put in fear of a person? It was decided that to convict a person in extortion it must be proved that the victims were put in fear of injury to themselves or to others. Also decided that mere threat of divine displeasure does not amount to extortion. FACT OF THE CASE – Narain Dusadh and Sheonand Singh, Were returning after the inspection of some fields when the two petitioners and others assaulted them. The petitionet gave a blow to Narain on the right leg and then other people assaulted Sheonandan. Jadunandan, after this forcibly took the thumb impression of Narain on one piece of blank paper and of Sheonandan on three blank papers. On these findings the two petitioners and two others were convicted for extortion under s 384 of IPC. TANULAL UDHA SINGH V EMPEROR is also relevant example of extortion. In this case it was said the harm threatened or caused to be threatened must be form something illegally done. According to se 43 of Indian penal code illegal means anything which is an offence or which is prohibited by law, or which furnishes ground for civil action. To prevent these kinds of offence in our society Indian penal code section 384 provides punishment – whoever commits extortion shall be punish with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

THEFT AND EXTORTION DISTINGUISHED Extortion is thus distinguish from theftExtortion is committed but h wrongful obtaining of consent. But In theft the offender takes without the owner’s consent. The property obtained by extortion is not limited, Immovable property may be the subject of extortion. Whereas in theft only movable property are the subject to theft. In extortion the property is obtained by intentional putting a person in fear of injury to that person or to any other, and thereby dishonestly inducing him to part with his property. Whereas In theft the element of force does not arise. ingredients

1. Intentionally putting a person in fear of injury, 2. The purpose of which is to dishonestly induce the person put in fear, 3. To deliver property or valuable security. The offence of extortion is intermediary between the offence of theft and robbery. Extortion becomes robbery, if the offender at the time of committing the offence puts the person in fear and commits the extortion by causing fear of instant death, hurt or wrongful restraint. However, in robbery, the property can be removed by force without the person delivering the property. Before a person can be said to put any person in fear of any injury to that person, it must appear that he held out some threat to do or omit to do what he is legally bound to do a thing which he is not legally bound to do and says that if money is not paid to him, he would not do that thing, such act would not amount to an offence of extortion. The fear of injury contemplated under Section 383 need not necessarily be bodily harm or hurt. It will include injuries to mind, reputation or property of the person. The fear must be of such a nature and extent as to unsettle the mind of the person on whom it operates and takes away from his acts that element of free voluntary action which alone constitutes consent. The ‘fear’ must be of such a nature and extent as to unsettle the mind of the person on whom it operates, and takes away from his acts, that element of free voluntary action which alone constitutes consent. The word ‘injury’ is defined in Section 44 of IPC as denoting ‘any harm whatever illegally caused to any person, in body, mind, reputation or property. The injury contemplated must be one which

the accused himself can inflict or cause to be inflicted and the threat of divine punishment will not come under it. The essence of Section 383 is dishonest inducement and obtaining delivery of property in consequence of such inducement. Therefore, an intention to cause wrongful loss or gain is essential; merely causing of wrongful loss would not be sufficient. For an offence under Section 384 actual delivery of property by the person put in fear of injury is essential. Where a person through fear offers no resistance to the carrying off of his property, but does not deliver any of the property to those who carry it away, the offence committed is not extortion but robbery. The offence of extortion is not complete until delivery of property by the person put in fear. It is not necessary that the threat should be used, and the property received, by one and the same person. The threat may be used by one person and the property must be delivered in consequence of such a threat, i.e., the delivery of property to the person who puts in fear of injury to the one who delivers that property is not necessary, it may be delivered to any person at the insistence of the former and in consequence of the threat used. All those persons who use threat and to whom property is delivered will be liable for the offence of extortion. The thing delivered under Section 383 may be any property or valuable security, or anything signed or sealed with may be converted into a valuable security. Valuable security is defined in Section 30 of the Code thus: “The words ‘valuable security’ denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liabilities, or has not a certain legal right. For example, A writes his name on the back of a bill of exchange and the effect of this endorsement is to transfer the right to the bill any person who may become the lawful holder of it, the endorsement is a ‘valuable security’. The expression ‘anything signed or sealed’ denotes that even incomplete deeds may be the subject of extortion. If a minor boy is beaten and forced to execute a pronote, the person using such force would be liable under Section 283, but forcible taking of thumb impression on a piece of paper which can be converted into a valuable security does not amount to extortion but to an offence under Section 352 of the Code.

But incomplete deeds may be the subject of extortion. For instance, A signs his name to a promissory note in which date and amount etc. are not filled up and delivers it to B, the offence of extortion is committed because promissory note can be completed and used as valuable security

PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION Section 384 to 389 of Indian penal code awards punishment for extortion it says whoever commits extortion shall be punished with imprisonment of ether description for a term which may extended to three years, or with fine, or with both. More over section 385 says whoever, in order to the committing of extortion, puts any person in fear, or attempts to put any person in feat of any injury shall be punished with imprisonment of either for a term which may extend to two years or with fine or with both. Scope of this section- if the complete offence for instance fear caused and a consequent delivery of the property is committed then it is punishable under section 384. If only the first part of the offence is committed it is punishable under this section. The extortion defined in section 383 includes putting any person in fear of injury and covers this section which deals with a less serious offence. Section 386 putting person in fear of injury in order to commit extortion- this section says whoever commits extortion by putting any person in fear of death or of grievous hurt to that person or to any person of to any other shall be punished with imprisonment of either description for a term which may extend to ten years an shall also be liable to fine. In this section if the fear is caused is that of death or grievous hurt in naturally cause’s great alarm. The section therefore provides for severe penalty in such cases. Section 387, extortion by putting a person in fear of death or grievous hurt. - whoever in order to the committing of extortion puts or attempts to put any person in feat of death or of grievous hurt to that person or to any other shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. However section 386 and sec 387 have the same relation as sec 384 and se 385 the only difference being that in a case of this section and se 386 the injury in fear of which a person is put is death or grievous hurt. Should necessarily be instant. Section 388- this section says whoever commits extortion by putting any person in feat of an accusation against that person or any other having committed or attempted to commit any offence punishable with death or with imprisonment for life or with imprisonment for a term which may extend to ten years or of having attempted to induce any other person to commit such offence shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be one punishable under sectin377 of this code may be punished with imprisonment for life. Section 389- whoever in order to the committing of extortion puts or attempts to put any person in feat of an accusation against that person or any other of having committed or attempt to commit an offence punishable with death or with[ imprisonment for life] or with imprisonment for a term which may extend to ten years shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine and if the offence be punishable under section 377 of this code may be punished with [imprisonment for life]. OF ROBBERY Section 390 of Indian penal code says that in all robbery there is either theft or extortion. Now the question comes when a theft is robbery? And when extortion is robbery? For the answer of this question in Section 390 itself laid down Theft is robbery if in order or then committing of the theft or in

committing the theft or in carrying away or attempting to causes or attempts to cause to any person death or hurt or wrongful restrain of feat of instant death or of instant hurt or of instant wrongful restrain. is said to committed robbery. It means every theft is robbery if in order to committing it. In Harish Chandra v. State of U.P the victim boarded into train at Chakarpur railway station the accused and the co- accused along with some other person entered the same compartment. When the train reached Thankpur railway station at about 9:30 pm some of the engers started getting down from the compartment and there was a great rush. At that time the accused forcibly took away the wrist watch of the victim and when the victim raised an alarm the co-accused jumped out of the compartment. The victim also followed them. Ant after all the accused were caught and the stuff were also recovered from them. Both of the accused were charged for the robbery. It was argued on behalf of the defense that since the slapping of the victim too place after that watch had been stolen the hurt could not have been said to have been caused in order to commit the theft so as to bring the offence under sec 390 IPC the supreme court rejected the argument. The ingredients of this section is1) There is attempts to cause a person’s death or hurt or wrongful restrain or fear of instant death or. 2) Of instant hurt or instant wrongful restrain. Robbery is an aggravated form of extortion And every extortion is robbery also when in order to committing it offender at the time of committing it is in the presence of the person put in feat and commits the extortion by putting that person in feat of instant hurt or of instant wrongful restrain to that person or to some other persons to do so putting in fear induces the person so put in fear then and there to deliver up the thing extorted. PUNISHMENT FOR DIFFERENT KINDS OF ROBBERYSection 392, punishment for robbery- lays down Whoever commits robbery shall be punished with regrous imprisionment for a term which may extend to ten years and shall also be liable to fine and if the robbery be committed on the highway between unset and sunrise the imprisonment may be extended to fourteen years. Section 393, attempt to commit robbery- whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to ten years and shall be also be liable to fine and f the robbery be committed on the highway between sunset and sunrise the imprisonment may ne extended to fourteen years. An intention to rob coupled with some overt act short of robbery in furtherance of the intent is of paramount importance for convicting a person under section. Attempts for offences under the Indian penal code are punishable under section 511 where no express provision is made for punishment of such attempts. This section expressly provides for punishment for attempts to commit robbery. Section 511 would not apply to it. Robbery stands on a different footing from dacoity in this respect as an attempt at dacoity is punishable as decoity. Section 394 voluntarily causes hurt in committing robbery- this section says if any person in committing f pr in attempting to commit robbery voluntarily causes hurt such person and other person tly concerned in committing or attempting to commit such robbery shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also liable to fine. There may be dacoity without hurt being caused but in the case of an offence under this section sort is one of the essential elements if no hurt is caused no offence would be made out. Case referredOm Praksh v. state of utttarpradesh AIR 1956 ALL 163. It has decided what are the criteria which take a case in an offence of robbery? In this case persons had charged for dacoity, two of them were acquitted, the court said that for the dacoity there must be 5 persons.

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, or 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, or of instant hurt, or of instant Wrongful restraint. Illustrations: (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 the committing of 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 fling 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. (d) A obtains property from Z by saying – “Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees.” This is extortion, and punishable as such: but it is not robbery, unless Z is put in fear of the instant death of his child.

Important Points: A. Meaning: Robbery means a felonious taking from the person of another or in his presence or against his will, by violence or putting him in fear. Robbery is an aggravated form of theft or extortion. If there is no theft or no extortion, there is no robbery. B. In all robbery there is either theft or extortion: The framers of the Indian Penal Code observed: “There can be no case of robbery which does not fall within the definition either of theft or extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or extortion. A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder him, unless he delivers all his property, and begins to pull of Z ornaments. Z in terror begs A will take all he has, and spare his life, assists in taking of his ornaments, and delivers them to A. Here, such ornaments as A took without Z’s consent is taken by theft. Those which Z delivered from fear of death or acquired by extortion. It is by no means improbable that Z’s right arm bracelet may have been obtained by theft and left arm bracelet by extortion; that the rupees in Z’s girdle may have been obtained by theft and those in his turban by extortion. Probable in nine-tenths of the robberies which are committed something like this actually takes place, and it is probable a few minutes later neither the robber nor the person robbed would be able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all necessary for the ends of justice that this should be ascertained. For though, in general, the consent of a suffer is a circumstance which vary materially modifies the character of an offence, and which ought, therefore, to be made known to the Courts, yet the consent which a person gives to the taking of this property by a ruffian who holds a pistol to his breast is a circumstance altogether immaterial.” C. When theft is robbery: Before theft can amount to robbery,— Firstly:

The offender must have voluntarily caused or attempted 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, Secondly: This must be in order to the committing of theft, or in committing of theft, or in carrying away or attempting to carry away property obtained by the theft, Thirdly: The offender must voluntarily cause or attempt to cause to any person hurt, etc., for that end, that is in order to committing theft or for carrying away or attempting to carry away property obtained by the theft, Fourthly: The offender must voluntarily attempt one or any of the above acts. D. When extortion is robbery: Similar to the above point, extortion becomes 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, or of instant hurt, or of instant wrongful restraint to that person or to some other, and, by so putting in fear induces the person so put in fear then and there to deliver up the thing or property extorted. E. Punishment: Sec. 392 imposes punishment for robbery. It lies down that whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and if the robbery be committed on the high-way between the sun-set and the sun-rise, the imprisonment may be extended to fourteen years. Inquiry: The nature of offence under this Section is cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first class. F. Sikander Kumar vs. State [1998 (3) Crimes 69 Delhi HC]

The prosecution was that the two appellants pointed a knife at the complainant and took Rs. 50/- and drove away the auto of the complainant. Next day the accused were arrested in Nakabandi in presence of complainant. One independent witness turned hostile. The trial Court imposed punishment against Sikander Kumar and other accused. On appeal, the Delhi High Court set aside the conviction, opining that entire prosecution story was inherently improbable and unbelievable. It would be unsafe to place total reliance on testimony of complainant to base conviction as one independent witness turned hostile. G. Attempt to commit robbery: Sec. 393 says that whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine. The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first class. H. Voluntarily causing hurt in committing robbery: According to Sec. 394, if the offender while committing robbery voluntarily causes hurt to the complainant, such offender shall be punished with imprisonment with life or with rigorous imprisonment for a term which may extend to ten years and also fine. The offence under this Section is cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first class. I. Omprakash vs. State (1978 CrLJ 797 All.) In this case, the accused committed a high-way robbery. They looted the engers of the bus. The trial Court imposed punishment for life. On appeal High Court upheld it. J. Narayan Prasad vs. State of M.P. (AIR 2006 SC 204) Brief Facts: The accused did robbery and also killed the wife of the complainant. The complainant identified the accused in the Identification Parade. The accused showed the stolen property. Recovery effected at the instance of accused not claimed by them, except one N who claimed that those were purchased by him under receipt. One of the PWs hostiled. The accused were convicted by the trial Court and it was confirmed by the High Court.

Judgment: The Supreme Court confirmed the trial Court judgment.

OF DECOITY-: Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of Indian penal code says when five or more person contly commit or attempt to commit a robbery or where the whole number of persons contly committing or attempting to commits 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. It is punishable under section 396 of Indian penal code it says whoever commits decoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In Kusho Mohtan v. State of Bihar AIR 1980 sc 788; 1980 cr law journal 543 and. Shyam Bihari v. State of Uttarpradesh AIR 1957 sc 320. are the related case for decoity and punishment for decoity. DIFFERENCE BETWEEN ROBBERY AND DECOITY. For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is defined in section 391 IPC which clearly postulates that when five or more person contly commit or attempt to commit a robbery or where the whole number of person contly committing or attempting to commit a robbery and person present and aiding such commission or attempt amount to five or more every person so committing attempting or aiding Is said to commit dacoity. The offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under se 395 of IPC. PUNISHMENT FOR DIFFERENT TYPES OF DECOITY Section 395, punishment for dacoity- Indian penal code provides punishment for decoity; it says whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. It comes into play only when the prosecution makes out an offence under section 390 and the number of assailants reaches to the statutory minimum. The maximum punishment provided under this section is life imprisonment for a term which may extend to ten years. Fine also be imposed. Decoity is considered a very grave and serious crime and hence courts hence held that in cases of dacoity deterrent sentences is called for. In awarding punishment for an offence under this section two things are to be considered 1) Having regard to the gravity of the offence committed the punishment that each individual deserves 2) On the facts and circumstances of a particular case whether a unusually heavy sentence is required to protect the interests of the public at large by acting as a deterrent to others. Section 396, Decoity with murder- deals with an aggravated form of decoity. It says if any one of five or more persons who are contly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or[ imprisonment for life] or regroups imprisonment for a term which may extend to ten years and shall also be liable to fine. In order to bring home the offence of dacoity with murder under section 396 it is not necessary to

prove that in under was committed by any particular member of the gang or that it was a common intention of the gang to commit the murder or that other of the gang expected the murder to take place. Nor it is necessary to prove that murder was committed tly by ll the of the gang. All that is required to be established by the preoccupation is that the murder had been committed while committing a dacoity. If that is established then all the of the aging who have committed dacoity are also equally liable for the murder under this section. CASEREFREDdecoity with murder depends on facts and circumstances of the case I am giving a example of a case Shyam Bihari v state of Uttar Pradesh Facts of the case- in an attempt to commit robbery the appellant killed one of the victims who had caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence of dacoity with murder. The appellant contended that he could not be convicted under section 396 IPC because any murder committed by the dacoits during their fight when they were running away without any booty could not be treated as murder committed in the commission of the dacoity. The high court negative this contention and held that section 396 would be attracted even where an attempt had been made to commit dacoity and a murder was committed when the dacoits were trying to make safe retreat and confirmed the sentence of death ed by the session judge. The appeal of the accused was similarly dismissed by the apex court. Section 397 robbery or dacoity with attempt to cause death or grievous hurt- This section says if at the time of committing robbery or dacoity the offender used 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 be less than seven years. Section 398, attempt to commit robbery or dacoity when armed with deadly weapon- the section says if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly weapon the imprisonment with which such offender shall be punished shall not be less than seven years. Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum sentence of seven years imprisonment. The essential of this section is as followa) An offence of robbery or dacoity must have been committed b) The offender should be taken part in the said offence c) The offender should have used a deadly weapons or cased grievous hurt or attempted to cause death or grievous hurt to any person at the time of committing a dacoity in Pholl kumar v delhi istration the accused had entered a petrol pump. The first accused was armed with a knife while the second accused had small fun in his hand. The first accused asked the employees of the petrol pump to hand over the keys. To terrorize the employees the second accused fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they ransacked the office and decamped with the money, the question threat arose for consideration was whether the first accused that was carrying a knife with him but did not use it for committing any over act would be covered under se 397. The Supreme Court held that in section 397 the words used were the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the section provides minimum sentences of seven years. The court held that first accused was carrying a knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them. Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not necessary to bring the offender under this section. Section 399- preparation of decoity- 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?

In our Indian penal code there is very few section where mere preparation of any offence is punishable for example offence against country. Preparation of decoity is also one of the offences which preparation is punishable. Section 402 provides punishment for only for assembling for the purpose of decoity- This section says whoever at any time after the ing of this act shall be one of five or more person assembled for the purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine. Section 401, punishment for belonging to gang of thieves- the section says whoever after the ing of this act shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery and not being a gang of thugs or dacoits shall be punished with rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.

Section 403 of Indian Penal Code, 1860 – Explained! by Pinki Sarkar Legal Provisions of Section 403 of Indian Penal Code, 1860. Dishonest misappropriation of property: This section defines and punishes the offence of dishonest or criminal misappropriation of property. It says that whoever either dishonestly misappropriates, or dishonestly converts to his own use, any movable property, Shall be punished with simple or rigorous imprisonment for a term extending up to two years, or with fine, or with both. It is clear from the language of the section that the offence of criminal misappropriation of property can be committed only with respect to a movable property and not against an immovable property. The offender must dishonestly misappropriate such property or must dishonestly convert to his own use such property.

In either case, dishonest intention on the part of the offender must always be proved. This has the same meaning as given under sections 24 and 23 of the Code. Thus, intention to cause wrongful gain or wrongful loss must always be proved against the offender. The word ‘misappropriates’ means appropriates in an illegal or unauthorised manner, that is to say, to set apart for or assign to the wrong person or a wrong use. The words ‘converts to his own use’ mean wrongfully using the property for his own benefit or appropriating it for his own self without any authority. The three illustrations (a), (b) and (c) below the main text help one to distinguish between the offences of theft and criminal misappropriation of property. It is amply clear from these illustrations that before the offence of criminal misappropriation of property is committed by the offender, the movable property which is the subject of this offence is already in possession of the offender innocently. Therefore, where A first commits theft of X’s watch and then sells it and utilises the money so earned for himself, A commits only theft and not criminal misappropriation of property because the watch had not come to the possession of A innocently but by theft. There are two explanations attached to the section. According to the first, a dishonest misapprorpriation for a time only is also a misappropriation within the meaning of this section. In other words, it is not necessary that there should be an intention on the part of the offender to cause permanent wrongful loss or permanent wrongful gain. If such intention exists even for a short duration of time, it is punishable under this section. The illustration given under the first explanation illustrates the point clearly. The second explanation lays emphasis on a finder’s duty and on his title. It states that a person who finds such a movable property which is not in the possession of anyone, and he takes such property with a view to protect the same for its owner or for restoring it to him, he does not take the same dishonestly or does not misappropriate it or convert the same to his own use, and thus he is not guilty under this section. But he commits an offence under this section if he dishonestly misappropriates it or converts the same to his own use, when he either knows its owner or has the means of discovering its owner, or before he has used reasonable means to discover and give notice to its owner and has kept the property for a reasonable time to enable its owner to claim it. This explanation also emphasizes that what are reasonable means and what is a reasonable time in such a case is a question of fact, which means that facts and circumstances of each

case will have to be considered before this question can be decided and there can thus be no general rules to govern it. The explanation also states specifically that it is not necessary for the finder to know as to who is the owner of such property or that any particular person is its owner. It is sufficient that at the time of its misappropriation or conversion by him he does not believe it to be his own property, or in good faith believes that its real owner cannot be found. The six illustrations given under the second explanation illustrate this aspect of the law quite clearly. Where two accused persons took delivery of a necklace from a goldsmith on a false representation with promise to return the same, but subsequently refused to return it, it was held that they were guilty under sections 403 and 420 of the Code. Where the accused found a purse on the pavement of a temple in a crowded gathering and put the same in his pocket but was caught immediately thereafter, it was held that he could not be held guilty under this section because merely picking up the purse did not establish dishonest intention on his part. Where A paid some money to В under a mistake, and later on when В discovered the mistake even then he did not return the amount to A and appropriated the same for himself it was held that he had committed an offence under this section. Since the offence of criminal misappropriation of property can be committed only after a movable property comes under the possession of the accused innocently, an abandoned property can never become a subject of this offence. Where the accused took delivery of certain consignment received by rail on behalf of the company in which he was employed, but made no entry of the same in the record of the company and even gave a false information that he had not taken delivery of the same, whereas he had removed them from the railway siding, the offence under this section was held to be committed. Where certain bales of cloth, in custody of the railways, were found unloaded near the godown of the accused and they were later recovered from that godown, it was held that on the basis of this much of facts alone it could not be said that they were dishonestly misappropriated or converted to his own use by the accused, and as such he could not be held guilty under this section.

Where a person is the finder of such a property from the nature of which it was natural to assume that there would be an owner of it, he must take reasonable care of the same and try to make reasonable efforts to locate its owner, but such efforts could not be such as to make him spend quite a bit of money on ment. Where the accused had taken a loan from a person but denied having taken it, this in itself would not make him guilty under this section because attempt to evade civil liability does not necessarily mean that the accused had dishonest intention. Where the accused was the chairman of a ‘samiti’ and in that capacity had collected dues from its , but he failed to deposit the same even after a long time had elapsed since his tenure as chairman was over, it was held that he was guilty under this section. The accused bus conductor had failed to deposit the bus fares allegedly collected by him. The prosecution failed to establish that he in fact had collected the fares or the amount had come into his possession thereof. It was held that he could not be held to have committed an offence under this section. The accused, a servant in the post and telegraph department, secreted two letters in the course of assisting in the sorting of letters, and his intention for doing so was to hand them over to the delivery man and share with him certain money payable on them. It was held that the accused had committed theft and as well as had attempted to commit criminal misappropriation of property. The accused, a principal of a school, allegedly drew an amount for the watchman of the school but this was not borne on the even though the watchman accepted receipt of the amount. Other payments of similar nature were also not entered in the . It was held that this much evidence alone would not be sufficient to convict the principal under this section. In U. Dhar v. State of Jharkhand, two contracts, one between the principal and the contractor and the other between the contractor and the sub-contractor, were entered into. On completion of the work the sub-contractor demanded payment to be made to him. When the same was not done, he filed a criminal complaint alleging that the contractor having received payment from the principal had misappropriated his money. The Supreme Court held that this plea was unsustainable because the contract and the subcontract were different from each other and the money paid by the principal to the contractor was not money or movable property of the complainant sub-contractor, and hence there was no

misappropriation. The dispute being about recovery of money, was a dispute of a civil nature and hence the criminal complaint was not maintainable and was liable to be quashed. Partner’s liability In Velji Raghavji v. State, the Supreme Court has held that a partner has undefined ownership along with the other partners over all the assets of the partnership and if he chooses to use any of them for his own purposes he may be able civilly to the other partners but he does not thereby commit any misappropriation within section 403 of the Code. Where a partner complained that the other partner had converted the partnership business into ownership business and had not paid him his share of the partnership business, the defaulting partner could not be held guilty under this section unless there was an allegation that the partnership had been dissolved. In Anil Saran v. State the Supreme Court observed that where a partner has been entrusted with property under a special contract and he keeps that property in this fiduciary capacity, misappropriation of that property would amount to criminal breach of trust. Exchanging a railway ticket A and В were about to board a train from Benares City. A had a valid ticket to Ajudhia while В had a valid ticket to Benares Cantonment. A voluntarily gave her ticket to В to check as to whether her ticket for the journey was valid. While returning A’s ticket back to her В deliberately substituted his ticket in its place and gave the same to her while keeping her ticket with him. В was held guilty of criminal misappropriation of property and not of cheating. Harvesting crops under attachment Where the accused judgment debtor, whose standing crops had been attached, harvested the same while the order of attachment was in force, it was held that he had committed an offence under this section. The offence under section 403 is non-cognizable, bailable and compoundable when permitted by the court which is trying the case, and is triable by any magistrate.

An Introduction to Criminal Breach of Trust The provision for Criminal Breach of Trust is mentioned in Chapter XVII under section 405 of Indian Penal Code. Section 405, of Indian Penal Code states, ‘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 willfully suffers any other person so to do, commits criminal breach of trust.’[i] What does Criminal Breach of Trust mean? The offence of criminal breach of trust, as defined under section 405 of IPC, is similar to the offence of ‘embezzlement’ under the English law. A reading of the section suggests that the gist of the offence of criminal breach of trust is ‘dishonest misappropriation’ or ‘conversion to own use’ another’s property, which is nothing but the offence of criminal misappropriation defined u/s 403. The only difference between the two is that in respect of criminal breach of trust, the accused is entrusted with property or with dominion or control over the property. As the title to the offence itself suggests, entrustment or property is an essential requirement before any offence under this section takes place. The language of the section is very wide. The words used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kindswhether to clerks, servants, business partners or other persons, provided they are holding a position of trust. “The term “entrusted” found in a 405, IPC governs not only the words “with the property” immediately following it but also the words “or with any dominion over the property.”[ii] Later an explanation was added to it by an amendment in the year 1973, and was later renumbered as explanation 1 in the year 1975. In the same year, another explanation was added to it. The explanations to this section are: Explanation 1[iii]: A person, being an employer [of an establishment whether exempted under section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee’s contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in

violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Explanation 2[iv]: A person, being an employer, who deducts the employees’ contribution from the wages payable to the employee for credit to the Employees’ State Insurance Fund held and istered by the Employees’ State Insurance Corporation established under. the Employees’ State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid. Essentials for Criminal Breach of Trust The essential ingredients of Criminal breach of trust are: 

The accused must be entrusted with property or dominion over it.



He must have dishonestly misappropriated the property or converted it to his own use or disposed of it in violation of such trust[v].

There are two distinct parts involved in the commission of the offence of criminal breach of trust. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the of obligation created[vi]. The principal ingredients of Criminal Breach of Trust are thus ‘entrustment’ and ‘dishonest misappropriation’. Entrustment: As the title to the offence itself suggests, entrustment of a property is an essential requirement before any offence in this section takes place. The language of this section is very wide. The words used are, ‘in any manner entrusted with property’. So it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of ‘trust’. The word entrust is not a term of art. In common parlance, it embraces all cases in which a thing handed over by one person to another for specific purpose. The term ‘entrusted’ is wide enough to include in its ambit all cases in which property is voluntarily handed over for specific purpose and is dishonestly disposed of contrary to on which possession has been handed over.[vii] Entrustment need not be expressed, it can be implied.[viii]

The definition in a 405 does not restrict the property to movables or immoveable alone. In R K Dalmia vs Delhi istration[ix], the Supreme Court held that the word ‘property’ is used in the Code in a much wider sense than the expression ‘moveable property’. There is no good reason to restrict the meaning of the word ‘property’ to moveable property only, when it is used without any qualification in s 405. Whether the offence defined in a particular section of IPC can be committed in respect of any particular kind of property, will depend not on the interpretation of the word ‘property’ but on the fact whether that particular kind of property can be subject to the acts covered by that section[x]. The word ‘dominion’ connotes control over the property. In Shivnatrayan vs State of Maharashtra[xi], it was held that a director of a company was in the position of a trustee and being a trustee of the assets, which has come into his hand, he had dominion and control over the same. However, in respect of partnership firms, it has been held[xii] that though every partner has dominion over property by virtue of being a partner, it is not a dominion which satisfies the requirement of s 405, as there is no ‘entrustment of dominion, unless there is a special agreement between partners making such entrustment. Explanations (1) and (2) to the section provide that an employer of an establishment who deducts employee’s contribution from the wages payable to the employee to the credit of a provident fund or family pension fund or employees state insurance fund, shall be deemed to be entrusted with the amount of the contribution deducted and default in payment will amount of the contribution deducted and default in payment will amount to dishonest use of the amount and hence, will constitute an offence of criminal breach of trust. In Employees State Insurance Corporation vs S K Aggarwal[xiii], the Supreme Court held that the definition of principal employer under the Employees State Insurance Act means the owner or occupier. Under the circumstances, in respect of a company, it is the company itself which owns the factory and the directors of the company will not come under the definition of ‘employer.’ Consequently, the order of the High Court quashing the criminal proceedings initiated u/ss 405 and 406, IPC was upheld by the Supreme Court. Misappropriation Dishonest misappropriation is the essence of this section. Dishonesty is as defined in sec.24, IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and wrongful loss is defined in sec 23, IPC. In order to constitute an offence, it is not enough to

establish that the money has not been ed for or mismanaged. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust. Proof of intention, which is always a question of the guilty mind of the person, is difficult to establish by way of direct evidence. In Krishan Kumar V Union of India[xiv], the accused was employed as an assistant storekeeper in the Central Tractor Organization (CTO) at Delhi. Amongst other duties, his duty was the taking of delivery of consignment of goods received by rail for CTO. The accused had taken delivery of a particular wagonload of iron and steel from Tata Iron and Steel Co, Tatanagar, and the goods were removed from the railway depot but did not reach the CTO. When questioned, the accused gave a false explanation that the goods had been cleared, but later stated that he had removed the goods to another railway siding, but the goods were not there. The defense version of the accused was rejected as false. However, the prosecution was unable to establish how exactly the goods were misappropriated and what was the exact use they were put to. In this context, the Supreme Court held that it was not necessary in every case to prove in what precise manner the accused person had dealt with or appropriated the goods of his master. The question is one of intention and not direct proof of misappropriation. The offence will be proved if the prosecution establishes that the servant received the goods and that he was under a duty to to his master and had not done so. In this case, it was held that the prosecution has established that the accused received the goods and removed it from the railway depot. That was sufficient to sustain a conviction under this section. Similarly, in Jaikrishnadas Manohardas Desai vs State of Bombay[xv], it was held that dishonest misappropriation or conversion may not ordinarily be a matter of direct proof, but when it is established that property, is entrusted to a person or he had dominion over it and he has rendered a false explanation for his failure to for it, then an inference of misappropriation with dishonest intent may readily be made. In Surendra Prasad Verma vs State of Bihar[xvi], the accused was in possession of the keys to a safe. It was held that the accused was liable because he alone had the keys and nobody could have access to the safe, unless he could establish that he parted with the keys to the safe. As seen in the case of criminal misappropriation, even a temporary misappropriation could be sufficient to warrant conviction under this section. Criminal Breach of Trust by a Public Servant, Banker, Merchant or Agent As already seen in the previous sections, the acts of misappropriation or breach of trust done by strangers is treated less harshly than acts of misappropriation or breach of trust who enjoy

special trust and are also in a position to be privy to a lot of information or authority or on of the status enjoyed by them, say as in case of a public servant. That is why sections 407 & 408 provide for enhanced punishment of punishment up to seven years in case of commission of offence of criminal breach of trust by persons entrusted with property as a carrier or warehouse-keeper. In respect of public servants a more stringent punishment of life imprisonment or imprisonment up to ten years with fine provided. This is because of the special status and the trust which a public servant enjoys in the eyes of public as a representative of the government or government owned enterprises. The persons having fiduciary relationship between themselves have a greater responsibility for honesty as they have more control over the property entrusted to them, due to their social relationship. A mere carelessness to observe the rules of treasury ipso facto cannot make one guilty of criminal breach of trust. There must be something more than carelessness, i.e., there should be dishonest intention to keep the government out of moneys[xvii]. Where under the rules, a public servant is required to lodge in the treasury any government by the s in his hands and the public servant removes the excess from the office cash book, he is guilty of misappropriation[xviii]. Moneys paid to Post Master for money order are public money; as soon as they are paid they cease to be the property of the remitters and a misappropriation of such moneys will fall under this section[xix]. It is not necessary under the section that the property in respect of which the offence is committed must be shown to property of the State. Under section 409 of IPC, the entrustment of property or dominion should be in the capacity of accused as a public servant or in the way of his business as a banker, broker or merchant etc. The entrustment should have the nexus to the office held by the public servant as a public servant. Only then this section will apply. In Superintendent and Remembrance of Legal Affairs v SK Roy[xx], the accused, a public servant in his capacity in Pakistan unit of Hindustan Co-operative Insurance Society in Calcutta which was a unit of LIC, although not authorized to do so directly realized s in cash of some Pakistani policy holders and misappropriated the amounts after making false entries in the relevant s. To constitute an offence of Criminal Breach of trust by a public servant punishable under s 409 IPC, the acquisition of dominion or control over the property must also be in the capacity of a public servant. The question before the court was whether the taking of money directly from

policy holders, which was ittedly unauthorized, would amount to acting in his capacity as a public servant. The Supreme Court held that it is the ostensible or apparent scope of a public servant’s authority when receiving the property that has to be taken into consideration. The public may not be aware of the technical limitations of the powers of the public servants, under some technical limitations of the powers of the public servants, under some internal rules of the department or office concerned. It is the use made by the public servant of his actual official capacity, which determines whether there is sufficient nexus or connection between the acts complained of and the official capacity so as to bring the act within the scope of the section. So in case, it was held that the accused was guilty of offence under s 409. An employee of the Indian Airlines, who took excess money from the engers and pocketed the same by falsifying reports, was held guilty under s 409 and the Prevention of Corruption Act, 1947[xxi]. In order to sustain conviction under section 409, it is required to prove: 1. Entrustment of property of which accused is duty bound to for; 2. Commission of Criminal Breach of Trust[xxii]. The prosecution dealing with cases of criminal breach of trust by a public servant is required to prove not only that the accused was a public servant but also was in a capacity entrusted with property or with domination over the same and he committed breach of trust in respect of that property[xxiii]. It is not necessary that the property entrusted to a public servant should be of government. But what is important is that, the property should have been entrusted to a person in his capacity as a public servant[xxiv]. Views of Judges & Courts in Various Cases In State of Gujarat vs Jaswantlal Nathalal[xxv], the government sold cement to the accused only on the condition that it will be used for construction work. However, a portion of the cement purchased was diverted to a godown. The accused was sought to be prosecuted for criminal breach of trust. The Supreme Court held that the expression ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another, continues to be its owner. Further, the person handing over the property must have confidence in the person taking the property. so as to create a

fiduciary relationship between them. A mere transaction of sale cannot amount to an entrustment. If the accused had violated the conditions of purchase, the only remedy is to prosecute him under law relating to cement control. But no offence of criminal breach of trust was made out. In Jaswant Rai Manilal Akhaney vs State of Bombay[xxvi], it was held that when securities are pledged with a bank for specific purpose on specified conditions, it would amount to entrustment. Similarly, properties entrusted to directors of a company would amount to entrustment, because directors are to some extent in a position of trustee. However, when money was paid as illegal gratification, there was no question of entrustment. In State of UP vs Babu Ram[xxvii], the accused, a sub-inspector (SI) of police, had gone to investigate a theft case in a village. In the evening, he saw one person named Tika Ram coming from the side of the canal and hurriedly going towards a field. He appeared to be carrying something in his dhoti folds. The accused searched him and found a bundle containing currency notes. The accused took the bundle and later returned it. The amount returned was short by Rs. 250. The Supreme Court held that the currency notes were handed over to the SI for a particular purpose and Tika Ram had trusted the accused to return the money once the accused satisfied himself about it. If the accused had taken the currency notes, it would amount to criminal breach of trust. In Rashmi Kumar vs Mahesh Kumar Bhada[xxviii], the Supreme Court held that when the wife entrusts her stridhana property with the dominion over that property to her husband or any other member of the family and the husband or such other member of the family dishonestly misappropriates or converts to his own use that property, or willfully suffers and other person to do so, he commits criminal breach of trust. Even failure to handover marriage gifts and ornaments received from in laws to the wife on being driven out amounts to criminal breach of trust[xxix]. Taking away such gifts and cash offerings from her by in laws also amounts to misappropriation.

Analysis & Conclusion Various suggestions were provided by various law commissions in order to amend the laws related to criminal breach of trust. The most important one being submitted by the Fifth Law Commission:

1. Section 408 (criminal breach of trust by clerk or servant) should be brought in tune with its proposed s 381 of the IPC so that breach of trust by any employee in respect of his employer’s property can be brought within purview of section 408. 2. The maximum punishment (of life imprisonment) provided for criminal breach of trust by public servant etc, should be scaled down to rigorous imprisonment for a term up to fourteen years. Hence it’s clear that for an offence to fall under this section all the four requirements are essential to be fulfilled. The person handing over the property must have confidence in the person taking the property, so as to create a fiduciary relationship between them or to put him in position of trustee. The accused must be in such a position where he could exercise his control over the property i.e., dominion over the property. The term property includes both movable as well as immoveable property within its ambit. It has to be established that the accused has dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust. It is submitted that the offence of criminal breach of trust is very much common in today’s world. It happens during the daily routine of a common man’s life. From offices to the marriage ceremonies, everywhere its presence can be traced. Not only in the truest sense but also there are many cases of white collar crimes, where the person without any intention involves in such crimes. The best way to get rid of such crime is by educating people about the stringent laws regarding this offence. In case of same by public servant, the laws are more stringent and thus they deter the public servant to commit such crimes. In this way this section is satisfactory in itself. The provisions laid down in the Indian Penal Code are enough to cope up with the problem of Criminal Breach of Trust. The only thing required is the effective implementation as well as application of law as many of the cases go unreported and through regular investigations they wouldn’t go unnoticed

Differences: The following are the point of differences between criminal misappropriation of property and criminal breach of trust:-

Point of difference

criminal misappropriation of property

criminal breach of trust

403 and 404

405

Acquisition of property

Property comes into the possession of the offender by some casualty and he afterwards misappropriates it.

Offender is lawfully entrusted with the property and he dishonestly misappropriates it or willfully suffers any person so to do.

Character of possession

There is no fiduciary relationship in this offence. The property comes into the possession of the offender any how

There is conversion of property held by a person in a fiduciary capacity.

Nature of possession

It must be of movable property.

Property may be movable or immovable.

2 years+ fine

Minimum 3 years + fine and extended punishment for grave criminal breach of punishment i.e. maximum 10 years+ fine.

Section

Punishment

Legal provisions regarding Stolen Property (Section 410 of IPC) by Sukendar Debnath Legal provisions regarding Stolen Property – Definition under section 410 of Indian Penal Code, 1860. Section 410 of the code defines stolen property. It gives a narrow definition of the term to include any property received by theft, extortion, robbery, misappropriation and criminal breach of trust. Property, which has been obtained by means other than those mentioned above for example, by forgery, or by cheating, would not fall within the meaning of ‘stolen property’ as defined in Section 410.

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The word ‘property’ has been used in Section 410 to denote only ‘movable property’. The expression ‘the possession whereof has been transferred’ does not mean that the receiver should receive directly from the thief. All it implies is that the receiver should receive property which has been obtained by theft. In this case, an innocent intermediate transferee does not purge the property of its taint as stolen property which it continues to be in the hands of all subsequent transferees, except the person legally entitled to its possession. The word ‘possession’ is used here in its widest sense as implying custody or control, whether temporary or permanent or exclusion of or tly with the thief. Manual possession is not necessary. The expression whether the transfer has been made or the misappropriation of breach of trust has been committed, within or without India’ means whether the substantive offence of theft or the subsidiary offence of receiving was committed within or without India. These words were inserted by Section 9 of the Indian Penal Code (Amendment) Act 1682, though the term ‘India’ was substituted in 1951, for the term ‘the State’.

To be termed stolen property, the property must have gone out of the control of the owner and it must have been received by the accused as stolen property and not in any other manner. Property, the possession of which has been transferred by theft or the other offences is designated stolen property. It is, therefore, a term which equally applies to property in the hands of the thief or of a receiver other than the thief. As regards property acquired by theft, extortion and robbery, the property is called stolen property. The property in the possession of a thief who runs away with stolen property is property socalled, though there has not been ‘transfer’ in the real sense of the term, and though his possession is insecure. But insecurity of possession is an incident of all stolen property and its transfer does not demand complete transmutation of possession which is not even the incident of a legal transfer. Indeed, the gist of the term lies in the intention as will be seen presently. To be termed stolen property, the properly must have gone out of the control of the owner and it must have been received by the accused as stolen property, and not in any other manner. Section 410 merely specifies the attributes of stolen property which however by themselves do not constitute an offence. Section 410 confined the definition of stolen property only to property which was the actual subject-matter of theft. It excludes all property which the stolen property has been converted into or exchanged for. When it will cease as stolen property: It stolen property subsequently comes into the possession of a person legally entitled to the possession thereof; it then ceases to be stolen property. Property once stolen retains that character so long as it remains out of the possession of the person lawfully entitled to it. Hence, as an owner may commit theft of his own property, so he may be also in possession of stolen property which is his own. This is obvious from the fact that the three offences of theft, extortion and robbery are intended only to property misappropriated “if such property subsequently comes into the possession of a person legally entitled to the possession thereof”, must mean the owner as distinct from the person in possession. This is evident from the fact that the possession of a misappropriator is not ab initio wrongful. It becomes wrongful only with the change of intention. Consequently, legal possession of property may, with the change of intention, be converted into stolen property.

In R.V. Villensy [(1892) 2 QB 597], a parcel was handed to the prosecutors, a firm of carriers, for conveyance to the consignees. While in the prosecutor’s depot, a servant of the prosecutor’ removed the parcel to a different part of the premises and placed upon it a label addressed to the accused. The superintendent of the prosecutor’s business, on receipt of information as to this, and after inspection of the parcel, directed it to be sent to the addressee in a van, along with two detectives. The parcel was duly received by the accused under the belief that it was stolen. It was still held by the court that the property having come under the possession of the actual owners before its receipt by the accused, it had ceased to be stolen property and the accused could not be convicted of receiving it knowing it to have been stolen. In Kishan Lal v. State of Uttar Pradesh [(1979) CrLJ 309 (All)], four thieves stole goods from the custody of a railway company and sent them by a parcel in the same company’s line addressed to the accused. During the transit, the theft was discovered, and on the arrival of the parcel at the station for delivery, a policeman in the service of the company opened it, and then returned it to the porter, who was under the duty to deliver it, under instructions to keep it till further order. On the following day, the policeman ordered the porter to take it to address, where it was received by the accused. The police thereafter got hold of him. The court held that the goods had reached its lawful owner, the railway company, so that it could no longer be called stolen goods and thus, the receipt of it could in no way be receipt of stolen property.

Essential Ingredients of the offence of dishonestly receiving Stolen Property (Section 411 of IPC) by Sukendar Debnath Legal provisions regarding Essential Ingredients of the offence of dishonestly receiving Stolen Property under section 411 of Indian Penal Code, 1860. Essential Ingredients of the offence of dishonestly receiving Stolen Property:

In order to convict a person for the offence of receiving stolen property, it is necessary to establish three factors:

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(i) That the property in question was stolen property; (ii) That the stolen property was in the possession of the accused; (iii) That it was dishonestly received or retained; and (iv) The accused knew or had reason to believe that the, property was stolen property. 1. Stolen Property: Section 411 deals with the receipt of stolen property. As per Section 410, “property, the possession where of has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as ‘stolen property’.” To prove the offence under Section 411, the prosecution should prove that the property stolen must have been acquired by theft or criminal misappropriation or other offences alien to them. To punish the accused under Section 411, it is necessary to prove all the circumstances constituting the property as stolen property. Property into or for which the stolen property has been converted or exchanged is not stolen property. An ingot obtained by melting stolen jewellery is not stolen property. A contrary view has been taken to say that an ingot made out of stolen ornaments by melting still retains its character of stolen property. But if stolen property is converted into cash, such cash cannot be regarded as stolen property. In Re Gaune Vithu Ghode [(1942) Cri. Appeal No. 187 of 1942 Unrep (Bom)] it was observed that if a gold necklace is stolen and exchanged for another necklace or melted down and converted into an ingot, it does not cease to be the same golden necklace that was stolen. What was stolen was gold in the form of a necklace, and what is produced is the same necklace in the form of an ingot.

A person may abandon his property and things of which the ownership has been abandoned are not capable of being stolen. Such property cannot, therefore, be the subject of an offence under Section 411. 2. Possession: It is not necessary that the stolen goods should have been physically produced from the actual possession of the accused. It is sufficient to show that the accused after the articles were stolen came into control of stolen goods and that he did so dishonestly or having reason to believe that it was stolen. Dishonest receipt and retention implies possession, and such possession to be criminal must be actual and exclusive, the criminal liability does not attach to constructive possession, as of the karta of a t Hindu family who though presumed to be in possession of the entire family property, could not, on that assumption, be held criminally liable for stolen goods brought into the house by other of the family. The word ‘possession’ in this connection obviously means conscious possession, for any other possession could not be taken into in charging person with criminal liability. As has been expressly provided for in Section 411 such person must be both dishonest and with knowledge of or belief in the stolen character of the property. An accused can be said to have committed the offence of receiving stolen property in respect of only the property recovered from him. The fact that the rest of the property stolen has not been recovered from him does not affect his liability. Mere knowledge as to the whereabouts of the stolen property will not make any person liable under Section 411. In Trimbak v. State [AIR 1954 SC 39] it was observed that the field from which the ornaments were recovered is an open one and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of those articles. The fact of recovery by the accused was compatible with circumstances of somebody else having placed the articles there, and of the accused somehow acquiring knowledge about their whereabouts. That being so that fact of discovery could not be regarded as conclusive proof that the accused was in possession of those articles. 3. Dishonestly receiving or retaining stolen property: Section 411 does not deal with mere receipt of the property, but clearly indicates the necessity of a dishonest intention. It is necessary for the prosecution to establish that the accused has

either dishonestly received or retained the stolen property. In either case, the accused must receive it from another. It is necessary for the prosecution to prove that there was some other person who was in possession of the property before the accused has either received it or retained it. The dishonest ‘reception’ is different from dishonest ‘retention’. In dishonest reception, dishonesty is contemporaneous with the act of such acquisition who in dishonest retention, dishonestely supervenes after the act of acquisition of possession. To constitute dishonest retention, there must have been a change in the mental element of possession, possession always subsisting animo et facto – from an honest to a dishonest condition of the mind in relation to the thing possessed. A person who retains possession of property dishonestly, therefore, possesses it dishonestly. But he who possesses it dishonestly does not necessarily retain it dishonestly. Dishonest retention thus implies a charge in the mental element of possession from ‘honest’ to ‘dishonest’ in relation to the thing possessed. According to Section 411, liability is imposed not only on those who receive stolen property, knowing it to be stolen but also on those who receive the property honestly, but later on retain it dishonestly. Thus, the liability of a person who retains dishonestly a property that he received honestly, is not less than that of a person who receives it dishonestly. 4. Receiving or retaining stolen property with knowledge: The offence made punishable under Section 411 is not the receiving of stolen property from any particular person, but receiving such property knowing it to be stolen. The accused must have known or must have had reason to ‘believe’ the property to be stolen. The word ‘believe’ is a much stronger word than ‘suspect’ and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. It is not sufficient to show that the accused was careless, or he had reason to suspect that the property was stolen or that he did not make sufficient enquiry to ascertain if it had been honestly acquired. It is immaterial whether the receiver knows or not who stole it. Initial receipt of property may be lost but its retention becomes dishonest if he continues to possess it even after he comes to know that property is stolen.

In Bhanwarlal v. State of Rajasthan [(1995) CrLJ 625 (Raj)], the accused purchased 9 kgs silver for a paltry sum deliberately knowing to be stolen property, it could not be said of him that he was a bona fide purchaser. Silver ingots were recovered at his instance from several persons. His conviction was held to be sustainable. In Nagappa Dhondiba v. State [AIR 1980 SC 1753] it was observed that where stolen ornaments of the deceased which she had been wearing when she was last seen alive are discovered within three days of the murder in pursuance of an information given by the accused and there is no other evidence, the accused can be convicted only under Section 411 and not under Section 302, IPC or Section 394, IPC as there is nothing to connect him with the murder or the robbery. In State of Karnataka v. Abdul Gaffar [2000 CrLJ 4456 (Kant)], a copper pot with Rs. 200 in it was stolen from a temple, the presumption of theft was raised against the person in whose possession it was found. The property was worth Rs. 600 only. Considering the fact that it was stolen from a temple, a fine of Rs. 2000 was imposed under Section 411. The offence under Section 411 is cognizable, and warrant should, ordinarily, issue in the first instance. It is both non- bailable and non-compoundable and is triable by any Magistrate summarily if the value of property stolen does not exceed Rs. 200.

Section 413 of Indian Penal Code, 1860 – Explained! by Pinki Sarkar Legal Provisions of Section 413 of Indian Penal Code, 1860. Habitually dealing in stolen property: Habitually receiving or dealing in stolen property has been made punishable under this section. The section states that whoever either habitually receives or habitually deals in property which either he knows or has reason to believe to be stolen property, shall be punished with

imprisonment for life, or with simple or rigorous imprisonment for a term extending up to ten years, and shall also be liable to fine.

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The prosecution has to prove under this section that the accused is either a habitual receiver of stolen property or he is a habitual dealer in stolen property, and in either case it must be established that he either knows the property to be stolen property or he has reason to believe that the property is stolen property. The offence under this section is a very serious offence is clear from the quantum of punishment prescribed. The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by court of session.

S. 412 Dishonestly receiving property stolen in the commission of a dacoity Description Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.

Classification u/schedule 1 CrPC Offence Dishonestly receiving stolen property, knowing that it was obtained by Dacoity

Cognizance

Bail

Cognizable

Non-Bailable

Composition u/s 320 CrPC Offence is NOT listed under Compoundable Offences

Section 414 of Indian Penal Code, 1860 – Explained! by Pinki Sarkar Legal Provisions of Section 414 of Indian Penal Code, 1860. Assisting in concealment of stolen property: Voluntarily assisting in concealing, disposing of or making away with stolen property has been made punishable under this section. The section states that whoever voluntarily assists either in concealing or disposing of or making away with property which he either knows to be stolen property or which he has reason to believe to be stolen property, shall be punished with simple or rigorous imprisonment for a term extending up to three years, or with fine, or with both.

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The assistance on the part of the accused must be voluntary and it must be in concealing or in disposing of or in making away with property. He must also know or must have reason to believe that the property is stolen property. The Supreme Court has held that it is not necessary that an accused could be convicted under this section only when another person is traced out and convicted of committing theft. The only thing that is needed to be proved is that the property recovered was a stolen property and the accused voluntarily assisted in concealing or disposing of or making away with it knowing or having reason to believe that it was a stolen property. Where property belonging to the deceased was recovered from the possession of the accused and the accused could not be convicted of murder of the deceased and of committing theft of his property because of lack of proof, he could be held guilty under this section. The accused driver of a taxi was carrying several engers in his taxi when it stopped at a place for unknown reasons and two of its engers got down from it and suddenly attacked a person and relieved him of fifty rupees after which they again boarded the taxi and the driver sped away even when the victim continued to cry. It was held that the accused driver was guilty under section 414.

The offence under this section is cognizable, non-bailable and compoundable, and is triable by any magistrate.

Of Cheating This part of the chapter on offences against property deals with cheating. It is spread over sections 415 to 420, both inclusive.

Legal Provisions Regarding “Cheating” – Section 415 of IPC by Prajwal Poojary Chapter-XVII of the Indian Penal Code explains the provisions about the offences against property. This Chapter contains Sections from 378 to 462. Out of them, Sections 415 to 420 explain about cheating. Section 415 defines “Cheating”. Section 416 explains about “Cheating by personation”.

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Section 417 explains the punishment for cheating. Section 418 explains cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect. Section 419 explains the punishment for cheating by personation. Section 420 explains cheating and dishonestly inducing delivery of property. Definition: Section 415 defines “Cheating”. It has given 9 illustrations giving the clear picture. Sec. 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. Illustrations: (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 cheats. (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 cheats. (c) A, by 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 cheats. (d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats. (e) A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats. (f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend him and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats. (g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat but is liable only to a civil action for breach of contract. (h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sales and conveyance to B, and receives the purchase or mortgage money from Z. A cheats. Important Points: A. Ingredients of Cheating: The ingredients of Section 415 are as follows: a. The accused must have induced fraudulently or dishonestly a person. b. The deceived should be induced to deliver any property to any person or to consent that any person shall retain any property. c. If the person deceived, must be intentionally induced by the wrong-doer to do or omit to do anything which he would not do or omit if such deceived person was not so deceived. d. The deceived should suffer any damage or harm in body, mind, reputation or property by the deceitful act of the wrong doer. e. A dishonest concealment of facts is also treated as a cheating. B. Fraudulently or Dishonestly: These words in the Section are most important. These words denote the elements of deception and dishonest intention. A willful misrepresentation of a fact with intention to defraud another person is cheating. C. When a person cheats another, the deceived person must have suffered or injured in body, mind, reputation or property. Where no loss or damage was caused to the person deceived, the accused cannot be punished for the offence of cheating. D. Property: Property may be of any kind movable or immovable. The property need not necessarily belong to the person deceived. A port, an ission card to an examination, title deeds, salary of a person, health certificate, etc., are deemed as property for the purpose of this Section and Section 420. E. Mens Rea:

Mens Rea (guilty intention) is an essential element of the offence of cheating. The very purpose and aim of the accused are to procure the property by means of deceiving the victim/ complainant. The accused induces the deceived with fraudulent and dishonest intention. In Chinthamani vs. Dyaneshwar (1974 CrLJ 542 Bombay) case, the accused sold the property to the complainant. In fact, they said property was already mortgaged to some other person. The accused concealed the mortgage and ed it in favour of the complainant and received full consideration. The High Court held that it was a clear cheating offence. F. Cheating by Personation: Section 416 lays down that a person is said to “Cheat by personation” if he cheats by pretending to be some other person, or by knowingly substituting one person for another, or representing that he or any other person is a person other than he or such other person really is. The offence is committed whether the individual personated is a real or imaginary person. Illustrations: (a) A cheats by pretending to be a certain rich banker of the same name. A cheats by personation. (b) A cheats by pretending to be B, a person who is deceased. A cheats by personation. G. M.N.A. Aachar vs. Dr. D.L. Raja Gopal (1977 CrLJ 228 Karnataka): In this case, the accused was already married. He represented himself to be a bachelor and married with the complainant’s daughter. The accused was held guilty of offence of cheating by personation and also under Section 494 (Bigamy.) H. Punishment for Cheating: Section 417 imposes the punishment for cheating with imprisonment of either description for a term which may extend to one year, or with fine, or with both. Nature of offence: The offence under this Section is non-cognizable, bailable, compoundable with permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate. I. Cheating with knowledge that wrongful loss may ensue to person whose interest offender is bound to protect: Section 418 provides that whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to a person whose interest in the transaction to which the cheating relates, he was bound, either by law or by a legal contract, to protect, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Nature

of offence: The offence under this Section is non-cognizable, bailable, compoundable with permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate. J. Punishment for cheating by personation: Section 419 imposes punishment for the offence of cheating by personation with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Nature of offence: The offence under this Section is cognizable, bailable, compoundable with permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate. K. Cheating and dishonestly inducing delivery of property: Section 420 provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or filed, 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. Nature of offence: The offence under this Section is cognizable, bailable, compoundable with permission of the Court before which any prosecution of such offence is pending, and triable by any Magistrate. L. Section 420 is an aggravated form of cheating: In Section 417 a general provision is made defining the cheating. For the cases in which property is transferred, the specific provision is made in Section 420. However the offence of cheating of any person by delivery of property is punishable under either of the two Sections. But where the case appears to be of a serious nature, then the prosecution may be conducted under Section 420. M. Mobarik Ali Ahmed vs. the State of Bombay (Air 1957 SC 857) Brief Facts: The appellant/Mobarik Ali Ahmed was doing business in the name of “Atlas Industrial and Trading Corporation” and “Ifthiar Ahmed & Co.” in Karachi. The complainant/Luis Antonio Correa was a businessman, doing business in Goa. In the year 1951, there was scarcity of rice in Goa. The complainant ed the accused/appellant for the supply of 2,000 tons of rice, which was agreed by the accused subject to the condition that 50% of the value payable in advance, before the shipping and remaining after the documents of shipping received.

Accordingly the complainant paid Rs. 81,000/ – (on 23-7-1951) Rs. 2,30,000/- (on 28-8-1951) and Rs. 2,36,900/- (on 29-8-1951) to the appellant/ accused through his agent. The appellant received the above mentioned cash but did not supply the rice. The complainant waited for one year and then initiated criminal proceedings against the four directors of the appellant company, i.e., MobarikAli, Santran, A.A. Rowji and S.A. Rowji. The last three accused absconded. The appellant fled to England. The Indian Authorities made an application to the Metropolitan Magistrate, Bow Street, London, who ordered the arrest of the appellant. He was brought to Bombay and then was tried. The trial Court proceeded against the appellant and found him guilty under Section 420, and imposed penalty and imprisonment for three years and ten months. On appeal Bombay High Court confirmed the conviction. The appellant appealed to the Supreme Court. Judgment: The Supreme Court held: “The appellant ceased to be an Indian citizen and was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under IPC notwithstanding he is not being corporeally present in India at that time.” Principles: 1. A conviction of an accused person under Sec. 420 would be valid though the charges under Sec. 420 read with Sec. 34 unless prejudice is shown to have occurred. 2. That all the ingredients necessary for finding the offences of cheating under Sec. 420 read with Sec. 415 occurred at Bombay. In that sense the entire offence was committed at Bombay and not merely the consequence, viz., delivery of money which was one of the ingredients of the offence. 3. Though the appellant was a Pakistani national at the time of the commission of the offence, he must be held guilty and punished under the Penal Code notwithstanding his not being corporeally present in India at the time because on a plain reading of Section. Section 2 of the Penal Code applied to him. 4. That the fastening of criminal liability on the appellant, who was a foreigner, was not to give any extra-territorial operation to the law, in as much as the exercise of criminal jurisdiction in the case. Where all the ingredients of the offence occurred within the municipal territory was exercise of municipal jurisdiction.

N. John McIver vs. Emperor (AIR 1936 FB Mad. 353) Brief Facts: J. McIver (A-1) was a Stock Broker under the name “Huson Tud & Co.” in Madras. K.S. Narasimha Chari (A-2) was an employee of accused-1. A-1 met one Rao Bahadur Boora Lakshmaiah Chetty on 14-3-1935 representing that their company had entered into a contract with the Imperial Bank of India under which they were under an obligation to sell and to deliver them 6 1/2% interests. 1935 Bombay Development Loan Bonds of the face value of Rs. 3,50,000/- and that the last date was 27-3-1935. Believing the words of A-1, the complainant/Rao Bahadur handed over the cash. Accused-1 did not hand over the Bonds and postponed under one pretext or the other. The complainant filed a complaint in the Court of the Presidency, Egnore against the accused-1 & 2, under Sec. 403 & 420 of the I.P.C. (Cheating and Criminal Breach of Trust) The accused compromised with the complainant and as a result he was acquitted from the charges. At this junction the State interfered and appealed to the Madras High Court contending that the Magistrate had no powers to compound the case, when once he issued summons. The accused pleaded “autrefois acquit”, (the accused once acquitted cannot be punished or tried on the same charge). The question of law arose. Judgment: The Madras High Court Full Bench gave the judgment in favour of the accused. Principles: 1. There can be no consent by a person who is cheated and of there is deceit which prevented any true consent arising there could be no entrusting; the are mutually exclusive. 2. The word “entrusted” should be construed as it access in the Section headed “criminal breach of trust”. The notion of a trust in the ordinary sense of that word is that there is a person the transferee or the entrusted, in which confidence is reported by another who commits property to him; and this again supposes that the confidence is freely given. A person who tricks another into delivering property to him bears no resemblance to a trustee in the ordinary acceptation of that term and Sec. 405 given no sanction to regarding him as a trustee. The essence of the criminal breach of trust is the dishonest conversion of property entrusted, but the act of cheating itself involves a conversion.

Conversion signifies the depriving of the owner of the use and possession of his property. When the cheat afterward sells or consumes or otherwise uses the fruit of his cheating he is not committing an act of conversion for the conversion is already done, but he is furnishing evidence of the fraud he practised to get hold of the property. Therefore, cheating is a complete offence by itself. O. Abhayanand Mishra vs. State of Bihar (AIR 1961 SC 1698) Brief Facts: The appellant sought the permission of Patna University for appearing M.A. examinations (English) in 1954. He enclosed the attested copies of B.A. Degree and permission letter from the Head Master of the school in which he was working. Permission was granted by the University. Before commencing the examinations, the University authorities received the information that the appellant did not B.A., and was not working as a teacher, and that he was debarred from the University. They reported the matter to the police, who investigated and filed the charge, sheet against the appellant under Section 420, and 511. The trial Court convicted him. On appeal the High Court upheld the conviction. He appealed to the Supreme Court contending that an ission card to sit for M.A. examination had no pecuniary value and therefore the provision of Sec. 420 would not be attracted. Further he contended that he applied to the University for the permission, and it was a mere preparation and it could not be treated as an attempt under Sec. 511. Judgment: The Supreme Court dismissed the appeal. It upheld the judgments of the Lower Court and the High Court. Principles: 1. An ission card to sit for an examination of a University is property within the meaning of Sec. 420. Though the ission card as such has no pecuniary value it has immense value to the candidate for the examination. 2. There is a thin line between the preparation for and an attempt to commit an offence. Undoubtedly a culprit first intends to commit the offence, then makes preparation for committing it and therefore, attempts to commit the offence.

If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Therefore, attempted to commit the offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. P. Dr.Vimala vs Delhi istration (AIR1963 SC 1572) Q. Breach of contract: There is a clear distinction between mere breach of contract and the offence of cheating. It depends upon the intention of the wrong-doer at the time of the inducement and his subsequent conduct. Mere breach of contract cannot give rise a criminal prosecution. R. Nageshwar Prasad Singh vs. Narayan Singh and others (1998 (5) SCC 694) Brief Facts: Nageshwar Prasad Singh the appellant herein has certain property in Patna. Narayan Singh and others, the respondents herein, contracted Nageshwar Prasad Singh to purchase a plot for certain consideration. Sale deed was concluded. Narayan Singh paid earnest money to the appellant and agreed to pay the balance at a future date. Nageshwar Prasad handed over the site to Narayan Singh. Narayan Singh started construction. Narayan Singh filed a civil case for specific performance of the contract in a civil Court against Nageshwar Prasad. Besides it, Narayan Singh being an advocate also filed a cheating case against Nageshwar Prasad alleging that Nageshwar did not fulfil the contract. Nageshwar Prasad contended that being it was a breach of contract from the respondent Narayan Singh the provisions of Section 420 would not attract in this case. The High Court dismissed his appeal. On appeal, the Supreme Court held that it was purely a breach of contract and the tricks played by Narayan Singh to delay the payment and harass the land owner. It quashed the trial Court’s judgment under Section 420, and also the decision of the High Court’s decision, and ordered Narayan Singh to pay Rs. 10,000/- to the appellant/Nageshwar Prasad for the vexatious proceedings.

S. Ram Prakash Singh vs. State of Bihar (1998 (1) SCC 173) Brief Facts: The accused/appellant was a development officer in LIC. He introduced some false and fake insurance proposals to LIC with a view to earn promotion on the basis of inflated business. Contents of proposals were in the handwriting of accused. The trial Court punished the accused under Sections 420. He appealed to the High Court. The High Court upheld the conviction. He appealed to the Supreme Court contending that on the basis of the proposals the policies were not issued and no loss occurred to LIC, and his acts should be treated as preparation. The Supreme Court held that the accused was rightly convicted by the Courts below