Offences against property find a prominent place in the Code. The basic element common to the offences under this Chapter can be seen is 'dishonesty', which the Code describes as the intention of causing 'wrongful gain' to one person or 'wrongful loss' to another, but the manner in which dishonesty is exercised, differs in different cases. In view of the wide range of illegal deprivation of property, we shall discuss major offences in this Chapter which affect the property.
Section 378, I.P.C. defines 'theft' and section 379, I.P.C. prescribes punishment for theft. Section 378 defines 'theft' in the following manner:
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.
To constitute theft, the following ingredients; K.N. Mehta v. State of Rajasthan, MANU/SC/0030/1957 : AIR 1957 SC 369, are required:
(i) The accused must have a dishonest intention to take the property;
(ii) The property must be movable;
(iii) The property must be taken out of the possession of another person, resulting in wrongful gain by one and wrongful loss to another;
(iv) The property must be moved in order to such taking i.e., obtaining property by deception; and
(v) Taking must be without that person's consent (expression implied).
Intention is the gist of the offence. The taking will not amount to theft unless the intention with which it is taken is dishonest
Intention must be dishonest and it must so exist at the time of taking of the property. Since some moving of the property is essential in order to accomplish taking of it, therefore, the intention to take dishonestly must exist at the time of moving of the property.1
In Pyare Lal v. State, MANU/SC/0152/1962 : AIR 1963 SC 1094, Subha Rao J., observed that "the section 378, I.P.C. may be dissected into its component parts thus: A person will be guilty of theft (1) if he intends to cause a wrongful gain or wrongful loss by unlawful means, of property to which the person gaining is not legally entitled to or to which the person losing is entitled, as the case may be; (2) The said intention to act dishonestly is in respect to movable property; (3) The said property shall be taken out of possession of another person without his consent; and (4) he shall move such property in order to such taking."
Where the accused took a bundle belonging to himself, which was at the time in the possession of a police constable, he was guilty of stealing because the constable had special property in bundle; Shiekh Hassan, (1887) Unrep Cr C 343.
In Queen Empress v. Nagappa, (1890) ILR 15 Bom 344, it was, however, held that where a person takes another's property believing under a mistake of fact and in ignorance of law, that he has a right to take it, he is not guilty of theft because there is no dishonest intention even though he may cause wrongful loss.
The subject of theft must be movable property, i.e., corporeal property of every description except land and things attached to the earth or permanently fixed to anything which is attached to the earth.
Explanation 1 and 2 make it clear that things attached to the land may become movable property after severance from the earth and that the act of severance may itself be theft.2 Thus, a thief who serves and carries away is treated like a person, who carries away a thing which had previously been served.
To invoke section 378, I.P.C., the property must be in the possession of the prosecution, whether he is owner of it, or is in possession of it in some other manner.
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1. See illustration (h) to section 378, IPC.
2. Sec illustration (a) to section 378, IPC.
Illustration (g) demonstrates that where property dishonestly taken belonged to a person who is dead, and therefore, in nobody's possession, or where it is lost property without any apparent possessor, not the offence of theft but criminal misappropriation is constituted.
A movable property is said to be in the possession of a person when he is so situated with respect to it that he has the power to deal with it as owner to the exclusion of all other persons, and when the circumstances are such that he may be presumed to intend to do so in case of need. It would be sufficient if the property is taken against his wish from the custody of a person who has an apparent title, or even colour of right to such property; Queen Empress v. Ganga Ram Santa Ram, (1884) ILR 9 Bom 135. Illustration (j) and (k) fully demonstrate that mere physical control of the prosecutor over the thing taken is quite sufficient, i.e., the person from whose possession, the property is taken, may not be the owner and may have his possession, either rightful or wrongful.
In Pyare Lal v. State, MANU/SC/0152/1962 : AIR 1963 SC 1094, Subba Rao J., observed that,
"To commit theft one need not take movable property permanently out of possession of another person with the intention not to return him. It would satisfy the definition if he took away any movable property out of possession of another person though he intends to return it later on."
The offence of theft is committed if the property of another person is taken away from him without his consent (express or implied) with a dishonest intention. Explanation 5 and illustrations (m) and (n) make it clear that the consent may be expressed or implied and may be given either by the person in possession or by any person having such authority.
In Parshottam Mahadev Patharphod v. State, (1962) 64 Bom LR 788 it was held that, the consent obtained by false representations which leads to a misconception will not be a valid consent.
The offence of theft is complete when the property is moved in order to such taking even though such thing may be far from passing into the thief's possession. Explanations (3) and (4) show how "moving" could be affected in certain cases. Illustrations (b) and (c) to section 378, I.P.C. elucidate the meaning of Explanation 4.
Section 425, I.P.C. defines 'mischief as "type section 425 without explanation". From, the definition of 'theft' as defined in section 378, I.P.C. and 'mischief as defined hereinbefore one can find only a hair line difference. In Gajadhar v. State, 1971 Cr LJ 1361 (UP) it was observed by the Allahabad High Court that, the essential difference between a theft and mischief is that when a person commits mischief he only causes loss to another but does not gain anything himself, while in theft he makes a wrongful dishonest gain of property at the expense of the victim.
Section 379, I.P.C. is the penal section of section 378, I.P.C. It reads:
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.
In Sekar v. Arumugham, 2000 Cr LJ 1552 (Mad) the fact of the case was, Sekar had availed a loan for a sum of Rs. 4 lakhs towards purchase of Ashok Leyland Lorry. He executed a deed of hypothecation in favour of the bank in terms of which he had hypothecated the lorry in question as security towards the due repayment of the amount borrowed by him. The loan was repayable in 60 monthly instalments. In terms of clause 14(3) of the deed of hypothecation, in event of any default in the payment of the loan instalments, the Bank had the right to seize the lorry. As per clause 15(b) of the said deed, the bank upon seizure of the vehicle was vested with the right to sell the same. When Sekar made default in the payment of loan instalment, the bank seized the said lorry. Aggrieved by this, Sekar filed a complaint for an offence under section 379 on the ground that the vehicle in question had been taken away by the respondent.
Issue:
Under these facts and circumstances, can the respondent be prosecuted for the offence of theft?
Decision: The Madras High Court after dismissing the appeal held that, the lorry financed under hire-purchase and hypothecation when seized by the banker on default in payment of instalments by the hirer, the financier cannot be charged for the offence of theft under section 378 because of absence of mens tea. The right of the owner to get back the vehicle is not affected by the fiction of 'deemed owner' under Motor Vehicles Act. When the respondent has been empowered to seize the lorry under clause 14(3), it cannot be said that the respondent has committed theft of the lorry when the petitioner has committed default in payment of instalments, the bank has right to seize the lorry. Therefore, it cannot be construed as a theft committed by the respondent as such. Again, only the owner of the property can claim right to seize the vehicle and the petitioner cannot claim the right. The bank continues to be the owner of the lorry.
In Pyarelal Bhargava v. State of Rajasthan, MANU/SC/0152/1962 : AIR 1963 SC 1094 the fact of the case was:
The accused was a Superintendent in Public Works Department of the State Government. A friend of his wanted a file of Public Works Department under the control of the Chief Engineer for removing certain unfavourable documents and putting documents which were more favourable to him. This was done by the accused. When the tampering was discovered by the officer concerned both the accused were charged with the offence under sections 379 and 465 with section 109, I.P.C.
Both the accused were convicted and sentenced by the trial court. The Sessions Judge maintained the conviction against the accused in respect to section 379. The High Court confirmed the conviction and sentence passed against the accused. The conviction and sentence passed against the second accused were set aside by the High Court.
Before the Supreme Court it was contended that (1) the Superintendent who was incharge of the file could not have taken the file from himself; (2) there was no intention on the part of the accused to take the file dishonestly as he did not receive any wrongful gain nor loss to any other person was caused.
Dismissing the appeal the Supreme Court held:
The accused had been correctly convicted and sentenced for theft. An analysis of the definition of "theft" contained in section 379 shows the following components:
A person will be guilty of the offence of theft if (1) he intends to cause a wrongful loss by unlawful means of property to which the person gaining is not legally entitled or to which the person loosing is legally entitled, as the case may be (see sections 23 and 24, I.P.C.); (2) the said intention to act dishonestly is in respect to movable property; (3) the said property shall be taken out of the possession of another person without his consent; and (4) he shall move that property in order to such taking.
In the instant case, it is not correct to say that the accused was in legal possession of the file. The file was in the Secretariat of the Department concerned which was under the charge of the Chief Engineer. The accused was only one of the officers working in the department; (ii) it cannot be said that the accused had not taken the file out of the possession of the department; (iii) to commit the 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 on.
There is wrongful loss in this case. Wrongful loss is loss by unlawful means of property to which the person losing it is legally entitled. It cannot be disputed that the appellant unauthorisedly took the file from the office and handed it over to his friend which means he had unlawfully taken the file from the department and for a short time he deprived the Engineering Department of the possession of the file. The loss need not be caused by permanent deprivation of the property but may be caused even by temporary dispossession, though the person taking it intended to restore it sooner or latter. A temporary period of deprivation or dispossession of the property of another causes loss to the other. That a person will act dishonestly if he temporarily dispossess another of his property is clear by illustrations (b) and (1) of section 378. These illustrations show that a temporary removal of a dog which might ultimately be returned to the owner or the temporary taking of an article with the view to return it after receiving some reward constitutes theft, indicating thereby that temporary deprivation of another person of his property can cause wrongful loss to him. The case clearly falls within the four corners of section 378.
Section 383, I.P.C. defines extortion in the following manner:
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 in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion".
While section 384, I.P.C. provides punishment for extortion.
The offence of extortion consists in:
(i) Internationally putting a person in fear of injury to himself or another;
(ii) Dishonestly inducing the person so put in fear to deliver to any person, property or valuable security.
For an offence under this section, the extortioner must put another person under fear of injury and thereby dishonestly induce that person to deliver the property. The fear of injury must be of a real nature, so as to unsettle the mind of the man upon whom it is exercised in such a way that the act does not remain voluntary; Reg v. George Walton, (1863) 169 ER 1399.
The essence of this offence is dishonest inducement and obtaining delivery of the property in consequence of such inducement. Therefore, on intention to cause wrongful loss or gain is essential; merely causing of wrongful loss would not be sufficient.
For an offence under this section actual delivery of property by the person put in fear of injury is essential; Labh Shankar v. State of Saurashtra, AIR 1955 Sau 42. Property under this section means both movable and immovable; Hyderabad State v. Beerappa, AIR 1951 Hyd 91. Where a person, through fear, offers no resistance to the carrying off 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 there is delivery of property by the person put under fear; Hyderabad State v. Beerappa, AIR 1951 Hyd 91.
To any Person:
It is not necessary that the threat should be used, and the property received, but one and the same person. The threat may be used by one person and the property may be received by another person, but 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 instance of the former, and in consequences to the threat used. All those persons who use threat and to whom property is delivered, will be liable for offence of extortion.
Valuable Security:
The thing delivered under this section may be any property or valuable security. 'Valuable security' in defined in section 30 of the Code. The latter expression, i.e., any thing signed or sealed denotes that even incomplete deeds may be subject of extortion. For instance, A signs his name on 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.
Though the object of both the offences is common i.e., 'wrongful gain of property'. However, there are few differences between the two as stated below:
1. In theft the offender takes property without the consent of the owner; extortion is committed by wrongfully obtaining of consent.
2. Only movable property may be subject-matter of theft; the property obtained by extortion is not limited only to movable one; even immovable may be the subject-matter of extortion.
3. In theft property is taken by the offender; in extortion the property is delivered to the offender.
4. In theft no force or fear is used or fear is caused in taking property; in extortion the property obtained by intentionally putting a person in fear of injury to that person or any other person and thereby, dishonestly inducing him to part with his property.
Section 384, I.P.C. provides punishment for extortion as follows:
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.
Sections 390 to 402, I.P.C. deal with robbery and dacoity. However, for our purpose, we would be dealing with sections 390 (robbery) and 391 (dacoity).
Robbery is an aggravated form of either theft or of extortion or of both. The essences of the offence of robbery is the presence of imminent fear of violence. A large proportion of robberies is a mixed case of aggravated form of theft and extortion.
Section 390, I.P.C. defines robbery as under:
In all robbery there is either theft or extortion.
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.
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.
Explanation.--
The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Therefore, it is clear from the section that the definition under the Code is not exhaustive and related to either theft or extortion. The essence of the offence of robbery is that the offender for committing theft or for carrying away or attempting to carry away the looted property, voluntarily causes or attempts to cause death, or hurt or wrongful restraint.
For an offence of robbery, death, hurt, or wrongful restraint may be caused either in committing theft or in order to the committing of them or it may even be caused after committing theft but in order to carry away the property obtained by theft.
For that end:
As explained above, the expression "for that end" indicates that death, hurt or wrongful restraint is caused in order to committing of theft, or in committing theft, or in carrying away property obtained by theft. But if a person causes hurt simply to avoid his capture when he is surprised by the owners while stealing, it would be a case of theft and not of robbery; Kalio Kerio, 1872 Unrep Cr C 65.
But where 'C and 'D' were stealing the mangoes from a tree and were surprised by 'B' whereupon 'C knocked down 'B' and he become senseless, the offence of robbery was held to have been committed; Hushrut Sheikh, (1866) 5 WR (Cr) 85.
Voluntarily causes:
The use of the words "voluntarily causes" in the section is significant because merely causing of incidental injury does not convert the offence into robbery. The injury must be voluntarily caused. For instance in Edware, (1943) 1 Cox 32 the accused while cutting a string, by which a basket was tied, with intent to steal it, accidentally cut the wrist of the owner, who at that moment tried to seize and keep the basket and ran away with it. He was held liable for theft. In a case the accused in snatching a nose-ring of a woman wounded her in the nostril and caused her blood to flow. He was held guilty or robbery; Tipai Bheer, (1866) 5 WR (Cr) 65.
Person:
The word 'person' means both natural and judicial persons. Normally dead body of a human being may not be a person but for the purposes of this section the word 'person' does not exclude the dead body of a human being who was killed in the course of the same transaction in which theft was committed; Jamuna Das v. State, MANU/MP/0036/1963 : AIR 1963 MP 106.
Extortion is robbery in the following conditions1:
(i) When a person commits extortion by putting another person in fear of instant death, or instant hurt, or of instant wrongful restraint so that person or to some other person.
(ii) Such a person, by so putting another in fear, induces the person so put in fear then and there to deliver up the thing extorted; and
(iii) The offender at the time of committing the extortion is in the presence of the person put in fear.
In the presence of the person:
For extortion to become robbery, it is necessary that the offender must be present before the person put in fear of injury. Explanation to this section clarifies that a person is said to be present if he is sufficiently near to put the other person in fear of instant death, or instant hurt, or of instant hurt or wrongful restraint. The offence of extortion becomes robbery if the offender by reason of his presence is capable enough to carry his threat
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1. Illustrations (b), (c) and (d) are the examples of those conditions.
into effect instantaneously. That is the victim delivers his property in-order to avoid imminent danger of injury to himself or to some other person. When injury threatened relates to some other person, such other person would naturally be one in whom the person, robbed is interested and, therefore, in order to avoid injury to that other person he delivers, the thing demanded.
Sections 392, 393 and 394 are the penal sections for robbery and related offences these sections prescribes as follow:
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 highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
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.
If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly 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 be liable to fine.
In B.A. Umesh v. Registrar General, High Court of Karnataka, AIR 2011 SC
1000 "this case where minor son of deceased after returning from playing with his friends found accused's statement that his mother being possessed by devil, accused had to tie her hands and was going to call a doctor. He also disclosed that while leaving house accused was carrying several things in a bag, including a VCR. He also identified accused in a T.I. Parade. His evidence has remained unshaken on cross-examination and corroborated by evidence of another witness who lived in neighborhood. Identification of accused further strengthened by other witnesses viz. landlord of accused. Sister of deceased identified articles seized from house of accused. Circumstantial evidence completed in a manner that clearly indicates that no one other than the accused committed offences with which he was charged. Finger-print of accused found on the handle of almirah in room of deceased proves his presence in house of deceased - Evidence also points to commission of rape of deceased by appellant. The Offence committed with extreme depravity and death inflicted on deceased in merciless manner. Offences committed by accused were neither under duress nor on provocation and an innocent life was snuffed out by him after committing violent rape on victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of incident he was caught by local public while committing an offence of a similar type. Post-mortem report opined that death had occurred due to smothering after commission of sexual assault. Conviction of accused under sections 376, 392 and 302, IPC. Case falls under rarest of rare category. Death penalty awarded by the Trial Court and confirmed by the High Court and when an appeal was preferred to the Supreme Court against the decision of the High Court, it was dismissed by the Supreme Court upholding the decision of the High Court.
In State of Karnataka v. Basavegowda, 1997 Cr LJ 4386 (Kant HC) the fact of the case was, Basavegowda (husband) about 10 days after his marriage took his wife (Bhagyamma) to one forest under the pretext of going for the wedding of a friend and he threatened to kill her unless she parted with all her ornaments. Bhagyamma, finding no other option, removed all her jewellery valued at around Rs. 11000 and handed the same over to the accused, who wrapped the same in a handkerchief and put it in his pocket.
Issue:
Whether the offence of the accused is punishable under section 384 or was it a case of robbery?
Decision:
The High Court observed and held that, the fact that under normal situations, a wife may even entrust her ornaments to the husband for safe custody or a prudent or careful husband may, for reasons of safety, keep the ornaments with him or under his control and such an arrangement could never lead to the inference that the husband was disentitled to retain the wife's ornaments and that it is a guilty circumstance against him. Particularly in criminal cases, such facts are not to be considered in a vacuum, but must be looked at strictly in relation to the special situation that prevails in that particular case. We have taken note of the fact that Bhagyamma has very clearly stated in her evidence that these ornaments belong to her as they had been made by her father for her wedding. She also states that they were in her custody and on her person and that the accused under threat, took the ornaments away from her. If the custody of the ornaments has come to the accused under these circumstances, then his possession becomes clearly unlawful. We need to add here that ornaments and personal property belonging to a wife necessarily constitute her personal possessions and divesting a wife of these against her wishes or without her consent would clearly bring the case within the ambit of a criminal offence. It is a misnomer to argue that irrespective of such situation, the possession of the wife's personal ornaments by husband still continues to be lawful. In our considered view, the extortion of the ornaments from Bhagyamma under threat and the subsequent recovery of these ornaments from the custody of the accused would clearly make him liable for an offence of extortion. Though the learned SPP submitted that even if the case did not qualify for a conviction under section 392, I.P.C., that on these facts, it would clearly come within the ambit of section 386, I.P.C. because, the ornaments were extorted under the threat of death, we would prefer not to accept the evidence of Bhagyamma without a little dilution because the FIR indicates a slightly less serious situation. It would be more appropriate, therefore, to record a
In Devassia Joseph v. State of Kerala, 1982 Cr LJ 714 the brief fact was, victim was employed in a vegetable shop. His job was to go to Tamilnadu, purchase vegetables and bring it in a lorry to Kottayam. On 7-2-1979 he was accompanying the vegetable lorry to Kottayam. A few hours before sun rise the lorry reached the road in front of Pushapgin Church, south of the Kairthas Junction. He saw a young woman standing on the road in front of the church wearing a saree. He told the driver that she wanted to answer the calls of nature. The driver stopped the lorry and he got down. He followed the woman and ascended the steps leading to Pushapgin Church. Three others appeared on the scene. He lost hisSeiko watch, Rupees 3001 cash he had with him and a gold chain, got done in jalaja fashion with a cross, weighing three sovereigns. He cried aloud and come to the road. By the time the driver had left with the lorry. He got into another vehicle and reached Kottayam of first Class, Ettumanoor, which was confirmed by the Session Magistrate Kottayam.
Issue Involved:
Whether the accused made an offence under section 394 read with section 34 of Indian Penal Code?
Kerala High Court Held:
The accused was convicted under section 378 of I.P.C. Further court said that disposing one of a movable without his consent and with a dishonest intention is theft. If, in the act of dispossession, the person in possession of the movable resists and the offender causes or attempt to cause death, hurt or wrongful restraint or fear of instant death or instant hurt or of instant wrongful restraint to any person then the offence will not be theft. The offence will be robbery. If hurt etc. is caused to overcome the resistance in carrying away the same then also the offence will be robbery. So in a case where the victim does not offer any resistance, the dispossession of a movable against his consent will not become an offence of robbery. Only in an offence of robbery. Section 394, I.P.C. will be attracted because the causing of voluntary hurt must be in committing a robbery or in an attempt to commit robbery. So, in a case where the victim does not offer any resistance against the dispossession of movables even if hurt is caused voluntarily, no offence under section 394, I.P.C. can be said to have been committed. In this case, there is no whisper either in the first information statement or in the evidence of victim that resisted when he actually disposed of the movable and cash. So, the offence committed by the accused is only theft and not one under section 394, I.P.C.
Section 391, I.P.C. defines 'dacoity' in the following words:
When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit 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".
From the definition under section 391, I.P.C. we can term dacoity as 'gang robbery' because robbery committed by five or more persons is dacoity.
(i) The accused committed or attempted to commit robbery;
(ii) Persons committing or attempting to commit robbery and persons present and aiding must not be less than five;
(iii) All such persons should act conjointly.
The word conjointly refers to united or concerted action of five or more persons participating in the act of committing the offence.
Dacoity is different from robbery only in respect of the number of offenders. Abettors present and aiding when the crime is committed are also counted in number. Dacoity includes robbery and because robbery is only aggravated form of theft or extortion, therefore, dacoitv includes theft and extortion also. Offering ofresistance by the victim is not necessary. Thus, if in a case of dacoity the inmates of a house, seeing the large number of dacoits do not offer any resistance and, therefore, no force or violence is required or used by the dacoits, the offence will not be reduced from dacoity to theft; Emperor v. Ram Chand, (1932) ILR 55 All 117.
Similarly, where the inmates of a house on simply getting the information that dacoity was about to be committed, left the house and ran away before the attack and several attacked the house and took away property, the offence of dacoity was held to have been committed because the fact of inmates running away was sufficient proof of the fear of hurt or wrongful restraint; Kessoree Pater, (1867) 7 WR (Cr) 35.
Section 395, I.P.C. provides punishment for dacoity in the following words:
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.
In Ghure v. State of Rajasthan, MANU/SC/0706/2011 : AIR 2011 SC 2268, this case the accused armed with firearms alleged to have killed two persons, grievously injured one and looted valuable moveable from house of complainant. The Witnesses identifying accused in T.I. parade and Court properly and the Valuables recovered on disclosure made by accused identified by complainant and his family members. Death of deceased proved to be result of gun shot injuries. Evidence of witnesses not shown to be suffering from any material discrepancy. So conviction of accused proper.
In Kusho Mohtan v. State of Bihar, MANU/SC/0151/1980 : AIR 1980 SC 788 it was held that, the accused while carrying away stolen property exploded crackers to frighten the person who wanted to pursue them and conviction is proper under section 395, I.P.C.
The word 'misappropriation' means a dishonest appropriation, and use of another's property for sole purpose of capitalising it for one's own use. Sections 403 and 404, I.P.C. relate to the criminal misappropriation of property. Section 403 defines criminal misappropriation and prescribes punishment for the offence and section 404 deals with misappropriation of a deceased person's property.
Section 403, I.P.C. reads:
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.
To constitute the offence of misappropriation the following ingredients must be established:
(1) The accused misappropriated that property and converted the same to his own use dishonestly.
(2) The movable property belonged to the complainant.
The offence of misappropriation consists in dishonest misappropriation or conversion either permanently or temporarily of movable property which is already in the possession of the offender; Rama Krishna, 1888 ILR 2 Mad 49. No entrustment is required to constitute this offence, Pramode Mategaonkar, (1965) 2 Cr LJ 562 when the property of another person comes into possession of the offender and is dishonestly converted or misappropriated by the offender to his own use, the offence is committed; Mahabir Prasad Garodia v. State of Assam, AIR 1961 Assam 132.
Dishonest intention:
Criminal misappropriation takes place not when one has innocently come into possession of a thing, but when by subsequent change of intention, or from the knowledge of some new fact with which the party was not previously acquainted, he keeps it, after which the retaining becomes wrongful and fraudulent. A man is said to do a thing 'dishonestly' when he does it with the intention of causing wrongful gain to one person or wrongful loss to another person. The offence consists in the dishonest misappropriation or conversion, either permanently or for the time being, of the property which is already in the possession of the offender.
Where 'A' took possession of a stray cattle and it was not shown that the cattle was stolen property, and he dishonestly retained it, he was liable under section 403, I.P.C.; Phulchand Dube, (1929) 52 All 152.
finder of goods:
Under the Code, the intention of the accused at the time the property was taken is taken into account and his subsequent dishonesty does not suffice to make him guilty of this offence. If the intention was not dishonest at the time possession was taken, a subsequent change of intention does not make the possession illegal. Explanation 2 to the section emphasises that in case of a finder of goods, if he has taken all precautions to ascertain the true owner and kept the goods for a reasonable time for restoring it to the true owner, he can use the property for himself, if the true owner is not found. But if he immediately misappropriates the property, he would be liable under this section.
There must be actual misappropriation or conversion of the things. The word 'appropriate' means to set apart or assign the property to oneself or to another to the exclusion of the owner; P. Dumgappa v. State of Mysore, AIR 1956 Mys 40. The words 'converts to his own use' necessarily connote the use or dealing with the property in derogation of the rights of the owner; Ramaswami Nadar v. State of Madras, MANU/SC/0048/1957 : AIR 1958 SC 56. The misappropriation or conversion must be to the accused's own use; Empress v. Sham Singh, 1884 Punj Re (Cr) No. 36, p. 63. When an accused found a thing and merely retained it in his possession, he was acquitted of this offence.
Property must be movable:
The misappropriation must be of movable property and must be in possession of someone. If the property is in nobody's possession or nobody is its owner, no criminal misappropriation can take place with respect to that property.
A joint owner of property is not guilty if he takes it out of the possession of another.1
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1. See illustration (c).
A partner has undefined ownership along with the other partners over all the assets of the partnership. If he chooses to use any of them for his own purposes, he may be accountable civilly to the other partners, but he does not thereby commit any misappropriation; V. Raghavji Patel v. State of Maharashtra, MANU/SC/0091/1964 : AIR 1965 SC 1433.
Section 404, I.P.C. provides for dishonest misappropriation of property possessed by deceased person in the following manner:
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.
(1) There may be some property movable or immovable.
(2) Such property was in the possession of the deceased at the time of his death.
(3) Since the death, such property was not in the possession of any person legally entitled to such a possession.
(4) The accused misappropriated it or converted it into his own use.
(5) He did so dishonestly.
If the accused was an employee of the deceased then the punishment for this offence may extend to seven years instead of a term of three years in usual cases of this offence.
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Theft (section 378) |
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Criminal Misappropriation (section 403) |
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1. |
The object of the offender is to take property from another person's possession, and the offence is complete as soon as the offender has moved the property dishonesty. |
1. |
The offender is already in possession of the property and his possession is not punishable either because he has found it or is a joint owner of it or has acquired it under some mistaken notion. |
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2. |
Dishonest intention is sufficiently manifested by a moving of the property or the act of taking. |
2. |
It is the subsequent (dishonest) intention to misappropriate or convert to his own use that constitutes the offence. |
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3. |
The moving of property itself is an offence. |
3. |
The moving of property may be perfectly lawful; it is the subsequent dishonest intention that makes it an offence. |
In Ramaswami Nadar v. State of Madras, MANU/SC/0048/1957 : AIR 1958 SC 56 the fact of this case was, the appellant used to carry on prize-competitions as the proprietor of the "Lotus Cross Words". Certain persons who had paid money in connection with prize competition No. 92 complained that they had not received their prize money though it had been announced that they had competed for the prize offered. The police, after investigations, submitted a charge-sheet against the appellant that he had dishonestly induced PWs 1 to 3 to complete in his "bumper competition" No. 92 by paying entry fees to the tune of Rs. 2,640 on the representation that the prize winners will get a sum of Rs. 3,10,000 and that on that representation he had collected one lac and fifteen thousand odd rupees from the public but did not utilize any part of the collected amount towards payments of the prize offered. The appellant was charged under section 420, I.P.C. The Presidency Magistrate at Madras acquitted the appellant. On appeal pressured by the State, the High Court allowed the appeal, but did not convict the appellant under section 420, I.P.C., but under section 403, I.P.C. for misappropriation. Hence the appeal by the appellant.
Issues Involved:
On the facts and circumstances of the case whether, misappropriation is clearly established in terms of section 403, I.P.C.?
Decision:
It was contended on behalf of prosecution that the graveness of the charges against the appellant was that inspite of his recent past experience that none of past bumper competitions attracted a sufficiently large number of competitors to yield the guaranteed prize money the appellant had advertised the competition No. 92 with guaranteed money of Rs. 3,10,000 and that inspite of his having collected about one lac and fifteen thousand odd rupees by the way of entry fees none of the prize declared to have been won by prosecution witness 1 to 3 and others had actually been paid. The history of the prize competitions conducted by the appellant showed that he was actuated by a dishonest intention when he collected one lac and fifteen thousand odd rupees by way of entry fees, and did not utilize any part of the collected amount towards payment of the prizes offered.
On behalf of the appellant it was contended that due to insufficient collections in the recent competitions, he was not able to respect all his obligations, so much so that he was forced to close down business owning to the loss on June 22, 1955. And to show his bona fides, he had disbursed over a lac of rupees even after the closure of the business and had settled the claims of six thousand out of seven thousand prize winners. It was contended that on the facts and circumstances stated (above) no case under section 403, I.P.C. was made out.
The court observed that to prove an offence under section 403, I.P.C. the prosecution has to prove that the property was the property of the prosecution witnesses and that the accused misappropriated that sum or converted it to his own use, and that he did so dishonestly. In the present case, the court held, none of these constituent elements of the offence under section 403, I.P.C. can be categorically asserted to have been made out. No doubt, the appellant had promised to award prizes of the total value of Rs. 3,10,000 but mere was no further obligation that the prize money had to come either wholly or in part from the sum collected by him by way of entry fees. There was no express provision in any of the rules and conditions of the "Lotus Cross Word" that there was any
obligation on the part of the appellant to set apart specific sums collected by way of entry fees for disbursement amount to the prize winners. The court rejected the contention of the prosecution that though there was no specific provision anywhere that the money collected by way of entry fees should be reserved for payment to the prize winners the appellant was gome sort of a trustee or bailee and should have seen to it that the collected amount was disbursed amongst the prize winners. The court held that there was neither such collected in a particular way. There being no duty to make appropriation in a particular way, the appellant could not be held guilty of having misappropriated the collection of competition No. 92.
Section 405, I.P.C. defines criminal breach of trust. It states that in order to constitute the offence of criminal breach of trust, it must be established that the accused was entrusted with the property or with dominion or power over the property of another and that he dishonestly misappropriated it or converted it to his own use; Challoor Mankkal Narayan Ituravi v. State of Travancore & Cochin, MANU/SC/0091/1952 : AIR 1953 SC 478. Section 406, I.P.C. prescribes punishment in case of a breach of trust and sections 407 to 409, I.P.C. deal with the cases of aggravated forms of criminal breach of trust. Section 406 reads:
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
The essential ingredients; Kailash Kumar Sanwantia v. State of Bihar, MANU/SC/0660/2003 : (2003) 7 SCC 399 are:--
(1) The accused must be entrusted with property or with dominion over property;
(2) The person so entrusted must--
(a) dishonestly misappropriate or convert to his own use that property, or
(b) dishonestly use or dispose of that property or willfully suffer any other person to do so.
(i) in violation of any direction of law prescribing the mode in which such property is to be discharged.
(ii) any legal contract made in discharge of such trust.
To constitute criminal breach of trust, there must be an entrustment, there must be misappropriation or conversion to one's own use of the property in violation of any legal direction or of any legal contract, and the misappropriation or conversion or disposal must be with dishonest intention. Every payment of money by one person to another does not amount to an entrustment unless there are circumstances attending it from which one can gather that it was an entrustment and not a mere payment; Jairani Devi v. Krishna Kumar, 1985 Cr LJ 64 (All). If the real nature of the transaction is a loan, the fact that the parties in writing call it a trust, would not attract the offence of criminal breach of trust.
Section 405, I.P.C. requires doing of something with respect to property which would indicate either misappropriation or conversion or disposal in contravention of any legal contract, express or implied. A mere dispute of civil nature will not attract the provisions of this section; Mohd. Suliman v. Mohd. Ayub, MANU/SC/0090/1964 : AIR 1965 SC 1319.
For an offence of criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. A person is said to be having a dominion over property when he supervises or exercises control over the property or is in the charge of that property. The inspector of Water Works, whose duty is to supervise and check the distribution of water from the Municipal Water Works is said to be having dominion over the water belonging to his employers. Therefore, if such inspector deliberately misappropriates such water for his own use or for the use of his tenants for which he pays no tax and gives no information to his employees, he would be guilty of criminal breach of trust; Emperor v. Bimal Charan Roy, (1913) 35 All 361.
In Somnath v. State of Maharashtra, MANU/SC/0255/1972 : AIR 1972 SC 1490 the accused, a Traffic Assistant in the office of Indian Airlines Corporation demanded on behalf of the Corporation certain excess amount for trunk charges from the passengers for reservation of seats. After the amount was received, he passed receipts on behalf of the Corporation. He, however subsequently falsified the counter foil receipts and fraudulently, misappropriated the excess amounts. The Supreme Court held that the accused was guilty of criminal breach of trust.
In Joseph Salvaraj A. v. State of Gujarat, MANU/SC/0719/2011 : AIR 2011 SC 2258, Supreme Court quashed the appeal of criminal proceedings. Where complaint was that appellant has failed to pay fees to cable operator for telecasting his channel. Dispute was civil nature. Complaint does not even prima facie make out offences under section 406, section 420, section 506, IPC. Complaint was even made by mediator between cable operator and channel owner who had no locus standi. Prosecution of appellant would only lead to his harassment and humiliation. The appellant for commission of the alleged offences would be clear abuse of the process of law. Appeal allowed and all criminal proceedings quashed.
Section 407, I.P.C. provides that:
Whoever, being entrusted with property as a carrier, wharfinger or warehouse-keeper, commits criminal breach of trust in respect of such 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.
A carrier is a person who undertakes for hire the conveyance of parcels of goods. A Wharfinger is the owner or occupier of a wharf, which is a platform by the side of which ships may be stationed for loading or unloading. A warehouse keeper is one who keeps a warehouse which is a house to deposit or keep a thing.
Section 408, I.P.C., punishes criminal breach of trust committed by a clerk or servant. It reads:
Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that 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.
Section 409, 7.P.C. is attracted when the offence is committed by a public servant, banker, merchant, factor (a person who does business for another) attorney or agent Section 409 reads:
Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Difference between theft and criminal breach of trust
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Theft (Section 378) |
Criminal Breach of Trust (Section 405) |
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1. In theft, properly is moved from the possession of another man with dishonest intention. |
1. In Criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriates it. |
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2. In theft, the offender comes in possession of the property without the consent of the person in possession. |
2. In criminal breach of trust, possession is derived with the consent of the owner. |
Difference between criminal misappropriation and criminal breach of trust
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Criminal Misappropriation (Section 403) |
Criminal Breach of Trust (Section 405) |
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1. The property comes into the possession of the accused in some natural manner. |
1. The property comes into the possession of the accused either by an express entrustment or by some process. |
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2. The property comes into the possession of the offender by some causality or otherwise and he afterwards misappropriates it. |
2. The offender is lawfully entrusted with the property and he dishonestly misappropriates the same. |
In V.S. Achuthanandan v. R. Balakrishna Pillai, MANU/SC/0109/2011 : AIR 2011 SC 1037 this case where award of contract for multi purpose hydro Electric power project but accused minister for electricity and higher officials of Electricity Board alleged to have awarded contract at exorbitant rates with ulterior motive. Prosecution has established award of both works of project at a very high and exorbitant rate with special conditions having heavy financial implications, by reducing retention and security amount, by allowing contractor to return only fifty per cent of empty cement bags. Accused persons have abused their official positions. Every personshall be presumed to be innocent unless he is proved guilty by competent Court of law. It is also settled law that if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate court should not disturb the finding of acquittal recorded by the trial Court. Accused acquittal.
In Kailash Kumar Sanwantia v. State of Bihar, MANU/SC/0660/2003 : (2003) 7 SCC 399 the fact was, the appellant went to State Bank of India for taking two bank drafts of Rs. 75,000 each, for that he carried a sum of Rs. 1,50,000 with him. The total amount was handed over to accused Head Cashier, Gautam Bose. The cash peon told him that he would count the money, and return the bag in which the money was carried. The appellant was handed over cash vouchers. As the draft was to be handed over at 2 p.m., he returned to his shop. In the meantime peon of the bank came to his shop and told him the money handed over by him was missing from the cash counter.
Issue:
Whether the accused persons can be convicted under section 409, I.P.C. for criminal breach of trust by a public servant?
Decision:
The apex Court observed that, section 409, I.P.C. deals with criminal breach of trust by a public servant, or by a banker, merchant or agent. In order to bring in application of the said provision, entrustment has to be proved. In order to sustain conviction under section 409, two ingredients are to be proved. They are:
(1) The accused, a public servant, or banker or agent was entrusted' with property of which he is duty bound to account for; and
(2) The accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided in section 405, I.P.C. Section 409 is in essence criminal breach of trust by a category of persons. The ingredients of the offence of criminal breach of trust are:
(1) Entrusting any person with property, or with any dominion over property.
(2) The person entrusted
(a) dishonestly misappropriating or converting to his own use that property; or
(b) dishonestly using or disposing of that property or wilfully suffering any other person so as to do in violation--
(i) of any direction of law prescribing the mode in which such trust is to be discharged; or
(ii) of any legal contract made touching the discharge of trust.
The basic requirement to bring home the accusations under section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not; misappropriated in or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.
What is to be decided is whether the accused had dishonestly misappropriated or converted to his own use the property entrusted or dishonestly used or disposed of that property. As presented by the prosecution, the money was taken away from the cash counter. It is not the case of the prosecution that money which was given to the accused Gautam Bose and the cash peon to obtain bank drafts was taken away by accountant Gautam Bose or the cash peon Ganaori Sao. Because of intervening situation of the disappearance of cash due to theft by somebody else., the bank draft could not have been prepared and handed over. Even if there is a loss of money, the ingredient necessary to constitute criminal breach of trust are not there. Therefore, the accused persons cannot be convicted under section 409, I.P.C.
In Jaikrishandas Manohardas Desai v. State of Bombay, MANU/SC/0084/1960 : AIR 1960 SC 889 the fact was, the Textile Commissioner, Bombay, invited tenders for dyeing some cloth. The Parikh Dyeing and Printing Mills Ltd., Bombay submitted a tender for the same and it was accepted by the Textile Commissioner.
The first appellant was the Managing Director and the second appellant was the Director and technical expert of the company. Pursuant to contract 2,51,000 yards of cloth was supplied to the company for dyeing. The company failed to dye the clothes within stipulated period and approx. 1,11,00 yards out of the cloth were dyed and delivered to Textile Commissioner. On the request of company the contract was cancelled by the Textile Commissioner in respect of the balance of cloth and the company was called upon to give an account of balance cloth delivered to it and it was also informed that it would be held responsible for material spoiled and not accounted for. Approximately 130,000 yards of cloth entrusted to the company was not returned to the Textile Commissioner.
The appellants were convicted under section 409, I.P.C. for criminal breach of trust. The present appeal before the Supreme Court is against the decision of the High Court.
Issues involved:
On the facts of the case, whether a simple failure to account is sufficient to bring a case under section 409, I.P.C.?
Decision:
The apex Court observed that in a case of criminal breach of trust under section 409, I.P.C. the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication. Entrustment and failure to account for may lead to an inference of dishonest misappropriation. Simple failure to account for may noi be sufficient to bring home the offence of criminal breach of trust. But when a person is unable to account for or renders undue explanation an inference of misappropriation with dishonest intention may readily be made.
In the present case, the court held it was amply clear that the two appellants were liable to account for the cloth over which they held dominion and they failed to account for the same. Therefore, each had committed the offence of criminal breach of trust.
The appeal was dismissed.
Howkins defines cheating as, "deceitful practices, in defrauding or endeavouring to defraud another of his own right by means of some artful device, contrary to the plain rule of common honesty". Section 415 of the Code deals with three types of cheating, which is given below by means of a diagram:
Cheating
Thus, as stated in the diagram cheating can be committed in three ways,
viz.,
(1) By fraudulently deceiving and inducing the person so deceived (a) to deliver any property, or (b) to consent to the retention of any property by any person;
(2) By dishonestly inducing the person to deliver any property or to give consent to the retention of any property; and
(3) By intentionally inducing the person deceived to do or to omit to do anything which he would not have done, if he was not so deceived and such act of him caused or was likely to cause damage, or harm in body, mind, reputation or property; Tulsi Ram v. State of Uttar Pradesh, MANU/SC/0390/1962 : AIR 1963 SC 666.
The essential ingredients; Ram Das v. State of Uttar Pradesh, AIR 1974 SC
1811 to constitute the offence of cheating are:
(i) There should be fraudulent or dishonest inducement of person by deceiving him;
(ii) (a) The person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) In cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to person induced in body, mind, reputation or property.
It is a well-settled principle of law that to hold a person guilty of the offence of cheating it has to be shown that his intention was dishonest at the time of making a promise. Such dishonest intention cannot be inferred from the mere fact that he could not subsequentlv fulfil the promise.
The word 'deceiving' means causing to believe what is false, or misleading as to a matter of fact or leading into error. In Shyam Sundar Gupta v. State of Briefly define the term "cheating" Uttar Pradesh, 1985 Cr LJ 1674 (All) it was held that, for the offence of cheating there must be a deception which should precede the fraudulent or dishonest inducement and it must be established that the intention of the accused was dishonest at the time of making the promise.
Where adulterated groundnut oil was sold on the representation that it was pure oil there was deception. In order to convict a person of cheating there must be nexus between the deception practiced and the parting of property. If the connection is too remote there will be no cheating. Thus, taking the price of a thing on representation that it is ready for sale without that thing being ready; or obtaining a thing by a false representation that it will be paid for without any intention whatsoever to pay for it, are examples of deception; Mahadeo Prasad v. State of West Bengal, MANU/SC/0181/1954 : AIR 1954 SC 724.
The word 'fraudulently' is defined in section 25 of the Code which says:
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise.
'Defraud' means 'to deceive'. Therefore, when an act is done fraudulently it means that it is done with the intention to deceive another.
In Bhagwan Maharaj v. State of Andhra Pradesh, MANU/SC/0402/1999 : AIR 1999 SC 2332 it was held that the representation made by the accused (Maharaj), that he had divine healing powers through his touches, thereby making the complaint believe that he could cure his little girl of her congenital dumbness through his divine powers was fraudulent and amounted to inducement.
Mere deception is not in itself sufficient to constitute cheating. It will be cheating only when on account of the deception practised, the complainant is induced to deliver or part with the property or to do or omit to do certain acts which were detrimental to his interest.
The word 'property' has been used in its widest sense in section 415, I.P.C. The property does not have to be a thing which has market or pecuniary value. Thus, documents like passport, admit cards etc. are also property within the meaning of this section.
Section 417, I.P.C. prescribes punishment for cheating in the following words:
Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 416, I.P.C. deals with the offence of cheating by personation. This section reads:
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.
Explanation.--
The offence is committed whether the individual personated is a real or imaginary person.
Personation by itself is no offence but when a person fraudulently and dishonestly does a fraudulent act and represents as if he is himself that other person, section 416, I.P.C. will be attracted.
When the accused used the railway season ticket issued in the name of a different person by pretending to be that person, the offence fell under this section; R. Matameswara (in re:), MANU/AP/0056/1956 : AIR 1957 AP 4.
Where the accused representing himself to be B at a University examination, got a hall-ticket under the examinee's name and wrote papers in B's name, it was held that the accused had committed cheating by personation and the offence of forgery was also made out; Queen Empress v. Shashi Bhushan, 1893 All WN 96.
Section 418, I.P.C. prescribes punishment for cheating by a person standing in a fiduciary capacity to the person cheated. This section reads:
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.
Where a director of a banking company got placed before the share-holder a balance sheet which he knew to be false and misleading, concealing the true position of the company, he was held liable under this section; Queen Empress v. Moss, (1894) 1 LR 16 All 88.
Section 419, I.P.C. prescribes punishment for the offence of cheating by personation as under:
Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 420, I.P.C. deals with the offence of cheating which involves delivery of property or destruction of valuable security in the following manner:
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 sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The offence of cheating is established when the following ingredients are proved, viz.,
(1) That the representation made by the accused was false;
(2) That the accused knew that the representation was false at the very time when he made it;
(3) That the accused made the false representation with the dishonest intention of deceiving the person to whom it was made; and
(4) That the accused thereby induced that person to deliver any property or to do or to omit to do something which he would otherwise not have done or omitted; Mahadeo Prasad v. State of West Bengal, MANU/SC/0181/1954 : AIR 1954 SC 724.
For a person to be convicted under section 420, I.P.C., it has to be established not only that he has cheated some one but also that by doing so he has dishonestly induced the person who was cheated to deliver any property. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person and wrongful loss to another person. Wrongful loss is the loss by unlawful means of property to which a person is entitled while wrongful gain means a gain by unlawful means of property to which the person gaining is not entitled. These are the facts of the definition of dishonestly and it is enough to establish the existence of one of them; Tulsi Ram v. State, AIR 1953 SC 666.
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Theft (Section 378) |
Criminal Misappropriation (Section 403) |
Cheating (Section 415) |
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1. The intention is to take dishonestly a movable property out of the possession of another person. |
1. The intention is to dishonestly misappropriate or convert to his own use any movable property. |
1. It is fraudulently or dishonestly inducing the deceived person to deliver any property. |
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2. Movable property involved |
2. Movable property involved. |
2. It may be any property. |
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3. The property is taken out of the possession of another. |
3. The offender is already in possession of the property. |
3. The victim is induced to deliver the property. |
In Kuldeep Sharma v. State of H.P., MANU/SC/0334/2011 : AIR 2011 SC 1895, this case where the appellant entered into criminal conspiracy with co-accused and prepared false muster roll in which names of casual labourers, who were not engaged, inserted. The Evidence of Meter Reader, Supervisor and Executive Engineer clear that it is appellant who had verified and countersigned muster roll and gave false certificate and on that basis wages were disbursed to labourers. Conviction proper and sentence of appellant already reduced by High Court to one year each for offence under IPC besides P.C. Act while dismissing appeal. Sentence awarded not excessive.
In Hridaya Ranjan Prasad Verma v. State of Bihar, MANU/SC/0223/2000 : (2000) 4 SCC 168 the fact of the case was, the appellants executed a registered sale deed in favour of the society and Manish Prasad Singh, an advocate, on behalf of the society handed over three cheques for the sum of Rs. 5.5 lakh. But, the said cheques were dishonoured on account of insufficiency of amount in the Account of the drawer. Appellants made several requests to Mr. Manish for payment of the amount. Finding that Mr. Manish has no intention to pay the amount, the appellants lodged complaint against him.
Issue:
Whether it was a case of breach of contract or cheating?
Decision:
The Supreme Court after convicting the accused for cheating held that, on a reading of the section 420, I.P.C. is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In second class of acts, the inducing must be intentional but not fraudulent or dishonest.
In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. That is the time when the offence is said to have been committed.
Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
In Mahadeo Prasad v. State of West Bengal, MANU/SC/0181/1954 : AIR 1954 SC 724 the fact was, the appellant agreed to purchase from the complainant 25 ingots of tin valued at over Rs. 17,000 odd against payment of cash. After taking delivery of the goods in his godown he disappeared from the place without making payment nor did he pay the price later. On a complaint he was charged with the offence of cheating under section 420, I.P.C.
His defense was that it was the complainant who was anxious to sell his goods because the process of this commodity were falling fast and that he had no intention to cheat but that the complainant lodged the complaint to give it a colour of crime.
Issue:
Whether the appellant had a dishonest intention?
Supreme Court held:
If the appellant at the time he promised to pay cash against deliver)' had an intention to do so, the, fact that he did not pay would not convert the transaction into one of cheating; but if on the other hand he had no intention to pay but merely said that he would do so in order to induce that complainant to part with the goods then a case of cheating would be established.
The complainant had never known the appellant; he did not have any previous dealings with him. He could not have been anxious to sell the goods to the appellant. Even assuming that the market was falling, the complainant would not have trusted the appellant who was an utter stranger and given delivery of the goods to him. There was sufficient evidence to show that at the time of purchase the appellant was in financial difficulties and had taken large overdrafts from banks and had no means of payments for the goods nor any hope of receiving any money for payment to the complainant.
Therefore the whole conduct of the appellant was sufficient to hold that at the time when he took delivery of the goods he had no intention whatsoever to pay. He merely promised to pay cash against delivery in order to induce the complainant to part with the goods.
In Sri Bhagwan S.S.V.V.V. Maharaj v. State of Andhra Pradesh, MANU/SC/0402/1999 : (1999) 5 SCC 740 the appellant (Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj) claimed to possess occult faculties and attracted a number of devotees. He represented to have divine healing powers through his touches, particularly of chronic diseases. The complainant approached him for healing his 15-year-old daughter who was congenitally a dumb child. The appellant assured the complainant that the little girl would be cured of her impairment through his divine powers. He demanded a sum of Rs. 1 lakh as consideration to be paid in instalments. The complainant paid some amount, but even after a long time no change could be seen in the girl.
issue:
Whether accused can be convicted for cheating or it was a case of breach of trust?
Decision:
The Supreme Court observed and held that, if somebody offers his prayer to God for healing the sick, there cannot normally be any element of fraud. But if he represents to another that he has divine powers and either directly or indirectly makes that other person believe that he has such divine powers, it is inducement referred to in section 415, I.P.C. Anybody who responds to such inducement and pursuant to it gives the inducers money or any other article and does not get the desired result is a victim of the fraudulent representation. The court can in such a situation presume that the offence of cheating falling within the ambit of section 420, I.P.C. has been committed. It is for the accused, in such a situation, to rebut the presumption. Therefore, the appellant has committed the offence under section 420, I.P.C.
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