Topic:- “Criminal Misappropriation”.
“The law, in its majestic equality, forbids the rich as well as
the poor to sleep under bridges, to beg in the streets, and to
steal bread”.
--- Anatole France.
Introduction
The offences like Criminal Misappropriation and Criminal Breach of Trust are criminal offenses
against property as mentioned under the Indian Penal Code, 1860. Section 403 of the Indian
Penal Code, 1860 defines Misappropriation of the property whereas Section 405 of the Indian
Penal Code, 1860 defines Criminal Breach of Trust. Under Section 403 of the Indian Penal Code,
when a person dishonestly misappropriated or uses the property of another person to satisfy his
own purpose or to capitalize it for one’s own use, has committed the offense of criminal
misappropriation. The essential ingredient of Section 405 of the Indian Penal Code, 1860 is trust
and whoever breaches it, has committed the offense of Criminal Breach of Trust.
DISHONEST MISAPPROPRIATION
OF PROPERTY
Section 403 and Section 404 of the Indian Penal Code, 1860 deals with the provision related to
criminal misappropriation of property. Section 403 of the Indian Penal Code talks about the
Dishonest misappropriation and the prescribed punishment under this offense while Section 404
of the Indian Penal Code deals with the provision related to criminal misappropriation of a
deceased person’s property.
Section 403 states that —Whoever dishonestly misappropriates or converts to his own use any
movable property, shall be punished with imprisonment of either description for a term which
may extend to two years, or with fine, or with both.
Under Section 403 of the Indian Penal Code, when a person dishonestly misappropriated or uses
the property of another person to satisfy his own purpose or to capitalize it for one’s own use,
has committed the offense of criminal misappropriation, shall be punished with imprisonment for
not less than a term that may extend to 2 years or with fine or maybe with both, provided that the
property is movable in nature.
ESSENTIAL INGREDIENTS OF SECTION 403
To make a person liable for an offence of Criminal Misappropriation, the following essential
ingredients must be fulfilled:
• The property must be of another person: The property must be of another person, meaning
to say, the owner of the property should not come under the definition of ‘another person’. The
property must belong to its owner and dishonestly misappropriated by another person to satisfy
his own purpose.
For example, Ram took a red car belonging to Shyam by mistake or unknowingly but returns the
same when he found that the real owner of the car is Shyam, then there is no misappropriation of
the property but if Ram does not return the car even after knowing that the car belonged to
Shyam, then Ram committed the offense of misappropriation of property.
• Dishonest Intention: When any person misappropriated or converts any property of
another person with dishonest intention, has committed the offence of criminal misappropriation.
The offender must possess dishonest intention while committing the crime.
• Conversion of the property: For constituting an offence of criminal misappropriation
the essence behind this section is when a person converts any property for his own use. A
word ‘converts to his own use’ connotes the usage or deals with the property in derogation of the
right of the owner, as per Ramaswami Nadar vs The State of Madras.
• Finder of the goods: When a person found something belonging to another person and he took
all the necessary steps to find the real owner of the goods and kept the found good for a
reasonable time to return it to the true owner of the property, even after this, if he is unable to
found the true owner of that goods, the finder of the goods can use the goods for his own
purpose. But, if he keeps the goods to himself since the true owner is unknown and not took
reasonable steps to identify the real owner or if he immediately misappropriates the property
without waiting for sufficient time, he has committed the offence of Criminal Misappropriation
and would be liable under Section 403 of the India Penal Code, 1860.
In the case of U. Dhar vs The State of Jharkhand , the Supreme Court of India held that any
dispute related to the recovery of money is always of civil nature and criminal complaint in this
regard is not maintainable.
MISAPPROPRIATION OF A DECEASED PERSON’S
PROPERTY
Section 404 states that – Whoever dishonestly misappropriates or converts to his own use
property, knowing that such property was in the possession of a deceased person at the time of
that person’s decease, and has not since been in the possession of any person legally entitled to
such possession, shall be punished with imprisonment of either description for a term which may
extend to three years, and shall also be liable to fine; and if the offender at the time of such
person’s decease was employed by him as a clerk or servant, the imprisonment may extend to
seven years.
Section 404 of the Indian Penal Code, 1860 is an aggravated form of criminal misappropriation.
Under Section 404 of the Indian Penal Code, when a person dishonestly misappropriated or uses
the property belonging to a deceased person to satisfy his own purpose or to capitalize it for
one’s own use, has committed the offence of criminal misappropriation, shall be punished with
imprisonment for not less than a term that may extend to 3 years or with fine or maybe with both.
If at the time of the person’s death, it was found that the offender was employed by the deceased
person as a servant or clerk, the punishment may extend to seven years. This Section is intended
to protect the property of a deceased person which needs special protection under these
conditions or these circumstances. This Section aims to punish servants, strangers or other
domestic workers who have no rights or interests in the effects of the dead man.
ESSENTIAL INGREDIENTS OF
SECTION 404
To make a person liable for an offence mentioned Under Section 404 of the Indian Penal Code,
1860, the following essential ingredients must be fulfilled:
• The property must be movable in nature or must be a movable property;
• Such property must be in the possession of the deceased person at the time of the death of
such person;
• The offender converted it or misappropriated it for his own use;
• The accused must have dishonest intention while committing such a crime.
• In Brijbasilal Shrivastava v. State , the accused who was a principal of a school, allegedly
drew an amount for making payment to the school watchman, but it was not recorded in the
school accounts register though watchman accepted receipt of the payment of the amount. Other
similar payments were also not entered in the school accounts register. Held, only this much
evidence alone was not sufficient to convict the principal under Section 403 of IPC.
• In Prem Singh v. State of Haryana, the accused allegedly killed the deceased, a girl of
24 years on March 3, 1999 after molesting her and dishonestly misappropriated her ear-
rings and golden necklace worn by her. These were recovered in possession of accused
on March 8, 1993. The sickle used by him to cause injuries on the neck of the deceased
was also recovered at his instance. The accused was convicted for murder and sentenced
to life imprisonment with fine of Rs. 500/- under Section 404, IPC and the conviction
was held proper by the Supreme Court.
• In Mallela Setharamaiah v. State of Andhra Pradesh , the accused dishonestly removed
rafters from the house of a deceased woman who had not been in possession of any legally
entitled person. He was held guilty for offence under Section 404 of IPCbecause the said rafters
(property) which were removed by the accused, were immovable property so long as they were
attached to the house, but became movable property after they were severed from the house.
DIFFERENCE BETWEEN THEFT AND CRIMINAL
MISAPPROPRIATION
1. In theft the offender dishonestly takes property which is in the possession of a person out
of that person's possession and the offence is complete as soon as the offender moves the
property. Whereas the offences of criminal misappropriation takes place even when the
possession has been innocently come but where, by a subsequent change of intention or
from the knowledge of some new fact, with which the party was not previously
acquainted, the retaining becomes wrongful and fraudulent.
2. The dishonest intention to appropriate the property of another is common to theft as to
criminal misappropriation. But the intention in theft is sufficiently manifested by a
moving of the property and in criminal misappropriation it is carried into action by an
actual misappropriation or conversion.
3. In case of theft, it is not necessary that person in possession of property must be the
owner of it but ownership of property is an essential elements of the offence of criminal
misappropriation.
DIFFERENCE BETWEEN CRIMINAL MISAPPROPRIATION &
CRIMINAL BREACH OF TRUST
On the basis of:
• Provision: Section 403 of the Indian Penal Code, 1860 defines Misappropriation of the
property whereas Section 405 of the Indian Penal Code, 1860 defines Criminal Breach of
Trust.
• Possession: In Criminal Misappropriation, the property comes into the possession of the
offender in some natural manner or by some casualty, but in Criminal Breach of Trust,
the property comes into the possession of the offender due to the entrustment by the
owner of the accused.
• Relationship: In Criminal Misappropriation, there is no contractual relationship between
the offender and owner of the property, but in Criminal Breach of Trust, there is a
contractual relationship between the offender and owner regarding the property.
• Nature of the property: In Criminal Misappropriation, the subject matter i.e. the
property is always movable in nature, but in Criminal Breach of Trust, the property may
be movable or immovable in nature.
• Misappropriation: In Criminal Misappropriation, the property is dishonestly
misappropriated by the offender for his own use, but in Criminal Breach of Trust, the
property or goods are misappropriated for his own personal use.
CONCLUSION
It is concluded that the Criminal Misappropriation and Criminal Breach of Trust are not the
same. Criminal Breach of Trust includes Criminal Misappropriation but the reverse is not always
true. Also, there is a huge difference between Criminal Misappropriation and Theft. Section
378 of the Indian Penal Code deals with the provision related to Theft. Under theft, the consent
of the real owner of the property is not known to the offender, but in Criminal Misappropriation,
initially, the real owner of the property grants consent to the offender. Another one, in theft when
the offender got possession of the property, he commits an act of theft, but in Criminal
Misappropriation, the offender just denies to give back the property to its real owner.
BIBLIOGRAPHY
▪ Prof. S. N. Mishra, Indian Penal Code ( Central Law
Publication, Twenty Second Edition, 2020).
▪ K. D. Gaur , Textbook on Indian Penal Code (Universal Lexis
Nexis Publication, Seventh Edition, 2020).
▪ P. S. A Pillai, Criminal Law ( Lexis Nexis Publication,
Fourteenth Edition, 2020).
