{"id":4281,"date":"2024-12-28T23:56:47","date_gmt":"2024-12-28T18:26:47","guid":{"rendered":"https:\/\/lawjurist.com\/?p=4281"},"modified":"2024-12-28T23:59:25","modified_gmt":"2024-12-28T18:29:25","slug":"understanding-the-concept-of-criminal-breach-of-trust-under-section-405-to-section-409-of-the-indian-penal-code","status":"publish","type":"post","link":"https:\/\/lawjurist.com\/index.php\/2024\/12\/28\/understanding-the-concept-of-criminal-breach-of-trust-under-section-405-to-section-409-of-the-indian-penal-code\/","title":{"rendered":"Understanding the Concept of Criminal Breach of Trust under section 405 to Section 409 of the Indian Penal Code."},"content":{"rendered":"
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\u00a0Mitali Ambre<\/strong>, a TYLLB Student of University of Mumbai<\/p>\n\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t

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Title <\/b>: <\/span><\/p>\n

This Article named Understanding the Concept of Criminal Breach of Trust under section\u00a0 405 to Section 409 of the Indian Penal Code, which contains the background History, Practical\u00a0 approach, Psychological Impact & Challenges regarding this topic.\u00a0<\/span><\/p>\n

Introduction<\/b>:\u00a0\u00a0<\/span><\/p>\n

\u201cTrust is the easiest thing to lose, and hardiest thing in the world to get back\u201d quoted by\u00a0 R.M.Williams. It is correctly quoted by this Famous Author that Trust is important in terms of\u00a0 Law it can be interpreted as Promise made by a party to do or abstain from doing something.\u00a0 Promise made can be of any nature .i.e. Civil, Criminal, or Commercial. When a person breaches\u00a0 the trust of another, the person has to bear the consequences.\u00a0\u00a0<\/span><\/p>\n

Background <\/b>:\u00a0\u00a0<\/span><\/p>\n

Breach of Trust concept initiated from the existence of Marriage & Trading have began for\u00a0 human race. The Concept was firstly highlighted in the Contract Act, 1872 as Breach of Contract\u00a0 which means breach of Promises made, sanctioned through law. Similarly, in Matrimonial case,\u00a0 the Breach of trust can be demonstrated as Cheating, Adultery or Bigamy which is to be\u00a0 considered as Offence under section 494 of the Indian Penal Code. This Article Puts spotlight on\u00a0 the Criminal Breach of Trust which is mentioned under Section 405 to Section 409 of the Indian\u00a0 Penal Code.\u00a0\u00a0<\/span><\/p>\n

\u00a0The offence of Criminal Breach of Trust includes Fraud done by the Public Servant, agent,\u00a0 merchant or Citizens, dishonest Misappropriation of property title or Misuse of the Entrusted\u00a0 property. Nowadays there are cases of not having good title of property, Misuse of assets &\u00a0 properties by the agent, Bribery and Corruption.\u00a0\u00a0<\/span><\/p>\n

Thesis <\/b>: This Article contains in depth comparative analysis of the concept given under section\u00a0 405 to Section 409 of the Indian Penal Code, which describes the offence of Criminal Breach of\u00a0 Trust. The study emphasizes on the Background, Practical Approach & Challenges regarding this\u00a0 legal offence.\u00a0<\/span><\/p>\n

Criminal Breach of Trust <\/b>:\u00a0\u00a0<\/span><\/p>\n

Criminal Breach of Trust is defined under section 405 of the Indian Penal Code for General\u00a0 Purpose as a person who is entrusted with property or with dominion over Property further\u00a0 dishonestly misappropriated the same for his own use or Misuses the property which was\u00a0 entrusted to him.\u00a0\u00a0<\/span><\/p>\n

Section 406 defines the punishment for general criminal Breach of Trust which will be in\u00a0 accordance with the nature of the offence.\u00a0\u00a0<\/span><\/p>\n

The Further sections of this offence are to categorized the offence for particular to a group,\u00a0 which are as follows \u2013\u00a0<\/span><\/p>\n

    \n
  1. Section 407 <\/b>deals with Criminal Breach of Trust done by a carrier, wharfing or\u00a0 Warehouse keeper.\u00a0\u00a0<\/span><\/li>\n
  2. Section 408 <\/b>emphasizes of Criminal Breach of Trust committed by a clerk or Servant.\u00a0\u00a0<\/span><\/li>\n
  3. Section 409 <\/b>puts spotlight on the offence of Criminal Breach of Trust do ne by a Public\u00a0 Servant, Merchant, Agent or Banker. The Punishment is more Severe under this section\u00a0 than under section 406.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

    There are differences between civil & Criminal Breach of Trust which are as follows to\u00a0 clarify the concept \u2013\u00a0<\/span><\/p>\n

      \n
    1. Nature of the Breach <\/b>\u2013 The nature of Breach in Civil Breach of Trust are of Civil nature\u00a0 which includes violation of fiduciary duties or contractual obligations. In Criminal Breach\u00a0 of Trust, the Breach is of Criminal nature which is defined under section 405 of the Indian\u00a0 Penal Code.\u00a0\u00a0<\/span><\/li>\n
    2. Formulation of Mens Rea <\/b>\u2013 In Civil Breach of Trust, the Mens Rea is irrelevant & focus is\u00a0 on fiduciary duty. In Criminal Breach of Trust, Mens Rea is essential to constitute the\u00a0 offence & dishonesty is key element of the offence.\u00a0\u00a0<\/span><\/li>\n
    3. Legal Proceedings <\/b>\u2013 In Civil Breach of Trust, one can choose to settle the suit through\u00a0 Arbitration or other Alternative Dispute Resolution mechanism. In Criminal Breach of Trust,\u00a0 there is no option of Other methods but to proceed with time consuming Suit for a longer\u00a0 period of time.\u00a0<\/span><\/li>\n
    4. Burden of Proof <\/b>\u2013 In Civil Breach of Trust, the burden of proof is on the both sides but in\u00a0 criminal Breach of Trust, the burden of proof is on Prosecutor\u2019s side to find evidence of\u00a0 Dishonest Intention & Misappropriation of Property.\u00a0<\/span><\/li>\n<\/ol>\n

      Case Laws \/ Legal Precedents <\/b>:\u00a0<\/span><\/p>\n

      The following are cases regarding Criminal Breach of Trust & their precedents which are\u00a0 followed till now \u2013\u00a0<\/span><\/p>\n

        \n
      1. State of Gujarat v. Jaswantlal Nathalal\u00a0<\/span><\/li>\n<\/ol>\n

        Citation : AIR 1968 SC 700\u00a0<\/span><\/p>\n

        Judgement : The Hon\u2019ble Supreme Court of India through this case set the precedent that\u00a0 for commission of Criminal Breach of Trust, there is required to have property or dominion\u00a0 of property being entrusted to the offender which he further dishonestly misappropriated\u00a0 for his own use.\u00a0\u00a0<\/span><\/p>\n

          \n
        1. R.K. Dalmia v. Delhi Administration\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

          Citation : AIR 1962 SC 1821\u00a0<\/span><\/p>\n

          Judgement : The Hon\u2019ble Supreme Court of India set the precedent to charged offence of\u00a0 Criminal Breach of Trust under section 405 of the Indian Penal Code, dishonest intention in\u00a0 the misappropriation of property is a must have ingredient.\u00a0\u00a0<\/span><\/p>\n

            \n
          1. Sardar Singh v. State of Haryana\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

            Citation : AIR 1977 SC 1766\u00a0<\/span><\/p>\n

            Judgement : The Hon\u2019ble Supreme Court of India held that failure to return the property\u00a0 which was entrusted does not constitute the offence of Criminal Breach of Trust unless\u00a0 there was dishonest misappropriation done on the part of the accused.\u00a0\u00a0<\/span><\/p>\n

              \n
            1. Velji Raghav Patel v. State of Maharashtra\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

              Citation : AIR 1965 SC 1433\u00a0<\/span><\/p>\n

              Judgement : The Hon\u2019ble Court highlights the director of a company who is entrusted with\u00a0 the properties of the Company & if he misses it for his own use them he will be held liable\u00a0 for Criminal Breach of Trust.\u00a0<\/span><\/p>\n

                \n
              1. Surinder Singh v. State of Punjab\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                Citation : AIR 1989 SC 1683\u00a0<\/span><\/p>\n

                Judgement : The Hon\u2019ble Supreme Court of India held that to constitute the offence of\u00a0 Criminal Breach of Trust, the accused must be entrusted with property & must have\u00a0 dishonestly used it for himself.\u00a0\u00a0<\/span><\/p>\n

                  \n
                1. Jai Prakash Singh v. State of Bihar\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                  Citation : AIR 2012 SC 1608\u00a0<\/span><\/p>\n

                  Judgement : In this Case, there was examination of sufficient evidence to whether call it\u00a0 ingredient to constitute the offence of Criminal Breach of Trust by the accused.\u00a0\u00a0<\/span><\/p>\n

                    \n
                  1. Ratanlal Rathi v. State of Maharashtra\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                    Citation : AIR 1997 SC 1639\u00a0\u00a0<\/span><\/p>\n

                    Judgement : In this mentioned Case, The Hon\u2019ble Supreme Court of India held that the\u00a0 elements to constitute the offence of Criminal Breach of Trust, the burden to prove the\u00a0 existence of these elements is of Prosecutor’s lookout & give the evidence of dishonest\u00a0 Misappropriation done by the accused.\u00a0\u00a0<\/span><\/p>\n

                      \n
                    1. State of West Bengal v. Bibhuti Bhusan Bagchi\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                      Citation : AIR 1981 SC 89\u00a0\u00a0<\/span><\/p>\n

                      Judgement : In the above Case, the Hon\u2019ble Court clarifies the need of evidence to\u00a0 establish criminal Breach of Trust in the case of misappropriation by Public Servant.\u00a0\u00a0<\/span><\/p>\n

                        \n
                      1. Indian Bank v. Satyam Fibres [India] Pvt. Ltd.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                        Citation : AIR 1996 SC 2592\u00a0<\/span><\/p>\n

                        Judgement : In the above mentioned Case, the Hon\u2019ble Supreme Court of India discussed\u00a0 the question of whether bank officials or bankers could be held liable for Criminal Breach\u00a0 of Trust for the acts done within their boundaries of an official duty.<\/span><\/p>\n

                        10.Dr. Vimla v. Delhi Administration\u00a0\u00a0<\/span><\/p>\n

                        Citation : AIR 1963 SC 1572\u00a0\u00a0<\/span><\/p>\n

                        Judgement : The Hon\u2019ble Supreme Court of India held in this Case that the offence of\u00a0 Criminal Breach of Trust involves not only Breach of Trust but also Element of Dishonesty\u00a0 on the part of the offender.\u00a0\u00a0<\/span><\/p>\n

                        Exception to Criminal Breach of Trust :\u00a0\u00a0<\/b><\/p>\n

                        There are Some Exceptions to this Offence which can be given as Defense in such cases\u00a0 are as follows \u2013\u00a0<\/span><\/p>\n

                          \n
                        1. Bona Fide claim of Right <\/b>:\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                          When the accused had Bona fide intention & believes to have the right on the property in\u00a0 question which could act as differentiate from dishonesty element of Criminal Breach of\u00a0 Trust.\u00a0\u00a0<\/span><\/p>\n

                            \n
                          1. Absence of Mens Rea <\/b>:\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                            The Burden of proof is on prosecutor as the accused didn\u2019t have mala fide intention which\u00a0 formulates Mens Rea. The Prosecution have to prove the Mens Rea of the accused until\u00a0 that would be proved, the accused is not liable of anything.\u00a0\u00a0<\/span><\/p>\n

                              \n
                            1. No Entrusted Property :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                              If the accused have no Entrusted property then it is not possible for the accused to misuse\u00a0 it or Dishonestly misappropriated the asset as it is the prime element of criminal Breach of\u00a0 Trust.\u00a0\u00a0<\/span><\/p>\n

                                \n
                              1. Performance of Contractual Obligations :<\/b><\/li>\n<\/ol>\n

                                When the accused was acted in accordance with a valid contractual obligations & their\u00a0 actions aligned with the terms of the contract then the accused is not guilty for the offence\u00a0 of Criminal Breach of Trust.\u00a0\u00a0<\/span><\/p>\n

                                  \n
                                1. Authority of Law :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                                  When the a person who is charged with this offence have acted under the authority of law\u00a0 or under a legal obligation then he shall not be liable for such offence.\u00a0\u00a0<\/span><\/p>\n

                                    \n
                                  1. Consent of the Owner :\u00a0<\/b><\/li>\n<\/ol>\n

                                    When the accused has taken prior consent of the owner before doing the act, he won\u2019t be\u00a0 liable for the Criminal Breach of Trust.\u00a0\u00a0<\/span><\/p>\n

                                      \n
                                    1. Mistake of Fact :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                                      If the said offender made mistake of fact honestly & doesn\u2019t have any mala fide intention\u00a0 then the accused won\u2019t be liable for this offence.\u00a0\u00a0<\/span><\/p>\n

                                        \n
                                      1. Acts done without causing loss to the owner :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                                        When the accused emphasizes with his actions no loss to the owner or damage to the\u00a0 owner\u2019s property then he won\u2019t be liable for the offence mentioned under Section 405 of\u00a0 the Indian Penal Code.\u00a0\u00a0<\/span><\/p>\n

                                        Practical Implications :\u00a0\u00a0<\/b><\/p>\n

                                        The Practical Aspects of this offence mentioned under Section 405 to Section 409 which\u00a0 can be seen through Case laws & Precedents given above in this Article. The Punishment\u00a0 given under these sections varies from the nature of the offence done by the accused.\u00a0 General Punishment for such offence is 3 years of Imprisonment & fine or both.\u00a0\u00a0<\/span><\/p>\n

                                        Challenges Regarding the Implication of this Offence :\u00a0<\/b><\/p>\n

                                        The implication to prevent offence of Criminal Breach of Trust has to be difficult due to\u00a0 burden of proof on the Prosecution\u2019s Side & to collect evidence regarding the case. The\u00a0 following are the challenges faced while preventing or proving the offence of Criminal\u00a0 Breach of Trust \u2013\u00a0<\/span><\/p>\n

                                          \n
                                        1. Evidence of Dishonest Intention <\/b>\u2013 The Prosecution has to prove the dishonest intention\u00a0 of the accused which is not possible to some reasonable extend in many cases.\u00a0\u00a0<\/span><\/li>\n
                                        2. False Cases <\/b>\u2013 Many people charged others as to threatening them for money. Such false\u00a0 cases of Criminal Breach of Trust when charged, the innocent people suffer severe losses.\u00a0\u00a0<\/span><\/li>\n
                                        3. Delayed in Verdict <\/b>\u2013 Due to the above reasons the justice is delayed & many cases are\u00a0 still in the process of Litigation.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                                          Conclusion <\/b>:\u00a0\u00a0<\/span><\/p>\n

                                          The Article can be summarized into the following points \u2013\u00a0<\/span><\/p>\n

                                            \n
                                          1. Criminal Breach of Trust is an offence covered under section 405 to Section 409 of the\u00a0 Indian Penal Code.\u00a0\u00a0<\/span><\/li>\n
                                          2. In the Criminal Breach of Trust, Significant ingredients are Dishonest Intention &\u00a0 Misappropriation of the Entrusted Property.\u00a0\u00a0<\/span><\/li>\n
                                          3. Challenges faced while preventing such offences are Difficult to finding dishonest\u00a0 intention, False Allegations & delayed justice due to time consuming examinations.\u00a0\u00a0<\/span><\/li>\n<\/ol>\n

                                            Reference <\/b>:\u00a0\u00a0<\/span><\/p>\n

                                              \n
                                            1. Case Laws :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                                              -State of Gujarat v. Jaswantlal Nathalal, AIR 1968 SC 700\u00a0<\/span><\/p>\n

                                              -R.K. Dalmia v. Delhi Administration, AIR 1962 SC 1821\u00a0<\/span><\/p>\n

                                              -Sardar Singh v. State of Haryana, AIR 1977 SC 1766\u00a0<\/span><\/p>\n

                                              -Velji Raghav Patel v. State of Maharashtra, AIR 1965 SC 1433\u00a0<\/span><\/p>\n

                                              -Surinder Singh v. State of Punjab, AIR 1989 SC 1683\u00a0<\/span><\/p>\n

                                              – Jai Prakash Singh v. State of Bihar, AIR 2012 SC 1608\u00a0<\/span><\/p>\n

                                              – Ratanlal Rathi v. State of Maharashtra, AIR 1997 SC 1639\u00a0<\/span><\/p>\n

                                              – State of West Bengal v. Bibhuti Bhusan Bagchi, AIR 1981 SC 89\u00a0\u00a0<\/span><\/p>\n

                                              – Indian Bank v. Satyam Fibres [India] Pvt. Ltd, AIR 1996 SC 2592\u00a0<\/span><\/p>\n

                                              – Dr. Vimla v. Delhi Administration, AIR 1963 SC 1572\u00a0\u00a0<\/span><\/p>\n

                                                \n
                                              1. Websites\/Articles & Bare Act :\u00a0\u00a0<\/b><\/li>\n<\/ol>\n

                                                – Section 405 Criminal Breach of Trust, indiacode.nic.in,\u00a0\u00a0<\/span><\/p>\n

                                                https:\/\/www.indiacode.nic.in\/show\u00a0<\/span><\/p>\n

                                                data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=462<\/span>, 1<\/span>st <\/span>September\u00a0 2024.\u00a0\u00a0<\/span><\/p>\n

                                                – Aashiya Rahman, Criminal Breach of Trust, blog.ipleaders.in,\u00a0\u00a0<\/span><\/p>\n

                                                https:\/\/blog.ipleaders.in\/criminal-breach-of-trust\/<\/span>, 8<\/span>th <\/span>May 2023.\u00a0\u00a0<\/span><\/p>\n

                                                – Aishwarya Agarwal, Criminal Breach of Trust IPC, lawbhoomi.com,\u00a0 <\/span>https:\/\/lawbhoomi.com\/criminal-breach-of-trust-ipc\/<\/span>, 18<\/span>th <\/span>July 2023.\u00a0\u00a0<\/span><\/p>\n

                                                – Adv. Rupa Agarwal, Criminal Breach of Trust- Punishment under Section 406 of IPC,\u00a0 ezylegal.com, <\/span>https:\/\/www.ezylegal.in\/blogs\/criminal-breach-of-trust-punishment-under section-406-of-ipc<\/span>, 1<\/span>st <\/span>September 2024.\u00a0\u00a0<\/span><\/p>\n

                                                – Aishwarya Sandeep, CRIMINAL BREACH OF TRUST, Aishwaryasandeep.in,\u00a0 <\/span>https:\/\/aishwaryasandeep.in\/criminal-breach-of-trust-7\/<\/span>, 14<\/span>th <\/span>June 2023.\u00a0\u00a0<\/span><\/p>\n

                                                – Indian Penal Code, 1860, Act No. 45 of 1860, \u00a7405, \u00a7406, \u00a7407, \u00a7408, \u00a7409, Act of\u00a0 Parliament, (India).\u00a0<\/span><\/p>\t\t\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t

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                                                \u00a0Mitali Ambre, a TYLLB Student of University of Mumbai Title : This Article named Understanding the Concept of Criminal Breach of Trust under section\u00a0 405 to Section 409 of the Indian Penal Code, which contains the background History, Practical\u00a0 approach, Psychological Impact & Challenges regarding this topic.\u00a0 Introduction:\u00a0\u00a0 \u201cTrust is the easiest thing to lose, […]<\/p>\n","protected":false},"author":1,"featured_media":4006,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[85],"tags":[],"_links":{"self":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4281"}],"collection":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/comments?post=4281"}],"version-history":[{"count":4,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4281\/revisions"}],"predecessor-version":[{"id":4285,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/posts\/4281\/revisions\/4285"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/media\/4006"}],"wp:attachment":[{"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/media?parent=4281"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/categories?post=4281"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/lawjurist.com\/index.php\/wp-json\/wp\/v2\/tags?post=4281"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}