Chapter XVII – Of Offences Against Property

Section 378:- Theft

Section 379:- Punishment for theft
Section 380:- Theft in dwelling house, etc.
Section 381:- Theft by clerk or servant of property in possession of master
Section 382:- Theft after preparation made for causing death, hurt or restraint in order to the
committing of the theft
Section 383:- Extortion
Section 384:- Punishment for extortion
Section 385:- Putting person in fear of injury in order to commit extortion
Section 386:- Extortion by putting a person in fear of death or grievous hurt
Section 387:- Putting person in fear of death or of grievous hurt, in order to commit extortion
Section 388:- Extortion by threat of accusation of an offence punishable with death or
imprisonment for life, etc
Section 389:- Putting person in fear or accusation of offence, in order to commit extortion
Section 390:- Robbery
Section 391:- Dacoity
Section 392:- Punishment for robbery
Section 393:- Attempt to commit robbery
Section 394:- Voluntarily causing hurt in committing robbery
Section 395:- Punishment for dacoity
Section 396:- Dacoity with murder
Section 397:- Robbery or dacoity, with attempt to cause death or grievous hurt
Section 398:- Attempt to commit robbery or dacoity when armed with deadly weapon
Section 399:- Making preparation to commit dacoity
Section 400:- Punishment for belonging to gang of dacoits
Section 401:- Punishment for belonging to gang of thieves
Section 402:- Assembling for purpose of committing dacoity
Section 403:- Dishonest misappropriation of property
Section 404:- Dishonest misappropriation of property possessed by deceased person at the time
of his death
Section 405:- Criminal breach of trust
Section 406:- Punishment for criminal breach of trust
Section 407:- Criminal breach of trust by carrier, etc.
Section 408:- Criminal breach of trust by clerk or servant
Section 409:- Criminal breach of trust by public servant, or by banker, merchant or agent
Section 410:- Stolen property
Section 411:- Dishonestly receiving stolen property
Section 412:- Dishonestly receiving property stolen in the commission of a dacoity
Section 413:- Habitually dealing in stolen property
Section 414:- Assisting in concealment of stolen property
Section 415:- Cheating
Section 416:- Cheating by personation
Section 417:- Punishment for cheating
Section 418:- Cheating with knowledge that wrongful loss may ensue to person whose interest
offender is bound to protect
Section 419:- Punishment for cheating by personation
Section 420:- Cheating and dishonestly inducing delivery of property
Section 421:- Dishonest or fraudulent removal or concealment of property to prevent distribution
among creditors
Section 422:- Dishonestly or fraudulently preventing debt being available for creditors
Section 423:- Dishonest or fraudulent execution of deed of transfer containing false statement of
consideration
Section 424:- Dishonest or fraudulent removal or concealment of property
Section 425:- Mischief
Section 426:- Punishment for mischief
Section 427:- Mischief causing damage to the amount of fifty rupees
Section 428:- Mischief by killing or maiming animal of the value of ten rupees
Section 429:- Mischief by killing or maiming cattle, etc., of any value or any animal of the value of
fifty rupees
Section 430:- Mischief by injury to works of irrigation or by wrongfully diverting water
Section 431:- Mischief by injury to public road, bridge, river or channel
Section 432:- Mischief by causing inundation or obstruction to public drainage attended with
damage
Section 433:- Mischief by destroying, moving or rendering less useful a light-house or sea-mark
Section 434:- Mischief by destroying or moving, etc., a land-mark fixed by public authority
Section 435:- Mischief by fire or explosive substance with intent to cause damage to amount of
one hundred or (in case of agricultural produce) ten rupees
Section 436:- Mischief by fire or explosive substance with intent destroy house, etc.
Section 437:- Mischief with intent to destroy or make unsafe a decked vessel or one of twenty tons
burden
Section 438:- Punishment for the mischief described in section 437 committed by fire or explosive
substance
Section 439:- Punishment for intentionally running vessel aground or ashore with intent to commit
theft, etc.
Section 440:- Mischief committed after preparation made for causing death or hurt
Section 441:- Criminal trespass
Section 442:- House-trespass
Section 443:- Lurking house-trespass
Section 444:- Lurking house-trespass by night
Section 445:- House-breaking
Section 446:- House-breaking by night
Section 447:- Punishment for criminal trespass
Section 448:- Punishment for house-trespass
Section 449:- House-trespass in order to commit offence punishable with death
Section 450:- House-trespass in order to commit offence punishable with imprisonment for life
Section 451:- House-trespass in order to commit offence punishable with imprisonment
Section 452:- House-trespass alter preparation for hurt, assault or wrongful restraint
Section 453:- Punishment for lurking house-trespass or house-breaking
Section 454:- Lurking house-trespass or house-breaking in order to commit offence punishable
with imprisonment
Section 455:- Lurking house-trespass or house-breaking after preparation for hurt, assault or
wrongful restraint
Section 456:- Punishment for lurking house-trespass or house-breaking by night
Section 457:- Lurking house-trespass or house-breaking by night in order to commit offence
punishable with imprisonment
Section 458:- Lurking house-trespass or house-breaking by night after preparation for hurt,
assault, or wrongful restraint
Section 459:- Grievous hurt caused whilst committing lurking house-trespass or house-breaking
Section 460:- All persons jointly concerned in lurking house-trespass or house-breaking by night
punishable where death or grievous hurt caused by one of them
Section 461:- Dishonestly breaking open receptacle containing property
Section 462:- Punishment for same offence when committed by person entrusted with custody

Notes

Theft
UNIT-III
Question No.19:- Discuss the ingredients of theft with the help of decided case? Also
distinguish between theft and extortion.
Answer :- Theft is an offence in which moveable property of a person is taken away
without his consent. Such property must be taken away dishonesty. Thus in theft there
would be a moveable property. It should be taken dishonestly and without the consent
of the owner. Theft has been defined in Section 378 of IPC. Simultaneously the
punishment for the commitment of act of theft has also been defined in Section 379 of
IPC.
DEFINITION OF THEFT U/S 378 OF IPC
“ Whoever intending to take dishonestly any moveable property out of the possession of
any person without that person’s consent, moves that property in order to such taking is
said to commit theft.”
INGREDIENTS OF DEFINITION
1. There must be a dishonest intention of a person to take the property.
2. Removal of movable property.
3. Such movable property must be taken away.
4. The property must be taken away from the possession of a person. In other
words there must be a possession of that property.
5. Such property must be taken away without the consent of such person.
A. Dishonest Intention:- It is also called as malafied intention which can be
representation in the form of mensrea. This mensrea is the base of the theft. The
petitioner must prove that a thing was taken away with the dishonest intention.
However intention is a mental element which is difficult to prove but
circumstantial evidences are considered for this purpose. The main measurement of
dishonest intention is to make a wrongful loss to another person then such act is
considered to be done with dishonest intention.
B.MOVABLE PROPERTY:- The subject of theft is movable property. Immovable
property cannot be stolen. A movable property is a property which is able to move easily
or which is not immovable. It means the thing permanently attached to the earth is
immovable property, is not the subject of theft. It becomes capable of being the subject
of theft when it is severed from the earth.
C. Be taken away out of Possession of another Person:- The property must be in the
possession of another person from where it is removed. There is no theft of wild
animals, birds or fish while at a large but there is a theft of tamed animals.
ILLUSTRATION :- ‘A’ finds a ring lying on the road which was in the possession of any
person. A by taking it commits no theft, though he may commit criminal
misappropriation of property.
D. IT SHOULD BE TAKEN WITHOUT CONSENT OF THAT PERSON:- The
consent may be express or implied and may be given either of the person in
possession, or by any person having for that purpose express or implied authority.
ILLUSTRATION NO. 1:- ‘A’ being on friendly terms with Z, goes into Z’s library in Z’s
absence, and takes away a book without Z’s express consent for the purpose of merely
reading it (with the intention of returning it)Here it is probable that A may have
conceived that he had Z’s implied consent to use Z’s book. If this was A’s impression, A
has not committed theft.
ILLUSTRATION NO.2:- ‘A’ asks charity from Z’s wife, she gives A money, food and
clothes, which A knows to belong to Z, her husband. Here it is probable that A may
conceive that Z’s wife is authorised to give away alms. If this was A’s impression. A has
not committed theft.
ILLUSTRATION NO.3 :- ‘A’ is the paramour of Z’s wife and she gives A, the valuable
property, which A knows that these belongs to her husband Z, although she has not
authority from Z to give the same. If takes the property dishonestly, he commits theft.
ILLUSTRATION NO.4:- A sees a ring belonging to Z lying on the table in Z’s house. A
hides the ring in a place where it is highly improbable that it will ever be found by Z, with
the intention of taking the ring from the hiding place and selling it when the loss is
forgotten. Here A at the time of first moving the rings, commits theft.
PUNISHMENT FOR THE OFFENCE OF THEFT
The punishment for committing theft in Indian Penal Code under section 379 for offence
of theft is an imprisonment which may extend to three years or with fine or both.

EXTORTION U/S 383

According to Section 383 of IPC,” Whoever intestinally puts any person in fear of any
injury to that person or to any other and thereby dishonestly induces the person so put
in fear to deliver to any person any property or valuable security, or anything signed or
sealed which may be converted into valuable security commits, “Extortion”.
ESSENTIALS OF EXTORTION
1. There must be a show of force or threat.
2. Such force or threat should be in the form of fear of injury.
3. Such injury may be for the person who is put under the fear or for any other
persons in which the former person has interest.
4. Such force should be shown with a view to take a thing for property or valuable
security or sign or seal or a document.
5. There must be dishonest intention.
Thus if the above elements are present then it is an offence of extortion, dishonest
intention is also an essential element of extortion. Dishonest intention is measured from
the circumstances and facts of each case. Anything taken from a person at the point of
pistol is an e.g. of extortion.

ILLUSTRATIONS :-
I) ‘A’ threatens to publish a defamatory libel concerning Z unless Z gives him
money. He thus induces Z to give him money. ‘A’ has committed extortion.
II) ‘A’ threatens Z that he will keep Z’s child in wrongful confinement unless Z will
sign and deliver to A a promissory note binding Z to pay money to ‘A’. Z signs and
delivers the note. ‘A’ has committed the offence of extortion.
PUNISHMENT FOR THE OFFENCE OF EXTORTION
A has committed the offence of extortion. Punishment for EXTORTION under section
384 of IPC,” Whoever commits extortion, shall be punished with imprisonment of either
description for a term which may extend to three years, or with fine or with both.
DIFFERENCE BETWEEN THEFT & EXTORTION

THEFT EXTORTION
1. The offender’s intention is to Consent is obtained by putting the
Take away something without person, in possession of property.
The owner’s consent. In fear of injury to himself or to any
Other person, i.e. there is wrongful
Obtaining of consent.
2. Theft is limited only to move- Both movable and immovable
Able property. Property may be the subject of the
Offence of extortion.
3.There is no element of force There is the element of force, for
In theft. Property is obtained by putting a
Person in fear of injury to that
Person, or to any other.
4. The offender takes the Delivery of property as distinct from
Property without the owner- taking away property is of its
Ship’s consent and hence essence.
There is no delivery by the
Owner.

Project on theft - Section 378 of IPC

INTRODUCTION

In common usage, theft is the taking of another person's property without that person's permission or consent with
the intent to deprive the rightful owner of it. The word is also used as an informal shorthand term for some crimes
against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud. In some
jurisdictions, theft is considered to be synonymous with larceny; in others, theft has replaced larceny.

For the offence of theft there is punishment of imprisonment of either description which may extend to 3 years, with
fine, or both according to the Indian Penal Code. The offence of theft is even though cognizable [1] and non-
bailable [2] it is compoundable[3]. So according to the criminal justice jurisprudence when the offence is
compoundable then generally it cannot be term as serious category of an offence. Otherwise also the seriousness
and gravity of an offence can be assessed by the fact and circumstances involve in any incidence of crime. Every
citizen in a free country is having right to do fair, law based analysis of any judgment given by any courts in India
without challenging the integrity of the person working as judge.

According to SECTION 378 OF INDIAN PENAL CODE, Whoever, intending to take dishonestly any moveable
property out of the possession of any person without that person’s consent, moves that property in order to such
taking, is said to commit theft.

OBJECTIVE

Theft literally means taking away someone’s property without his or her consent. The main objective of this project is
to analyse the legal approaches to criminalise theft. It analyses the existing criminal law provisions to evaluate how
far these provisions are effective. Section 379 is all about punishment for theft. This study is to understand how
section 379 has played a role in curtailing the offence of theft in our Country.

CONTENT ANALYSIS

Section 378 of IPC reads:

Whoever, intending to take dishonestly any moveable property out of the possession of any person without that per-
son’s consent, moves that property in order to such taking, is said to commit theft.

Explanation 1

A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes
capable of being the subject of theft as soon as it is severed from the earth.

Explanation 2

A moving effected by the same act which affects the severance may be a theft.

Explanation 3

A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it
from any other thing, as well as by actually moving it.

Explanation 4

A person, who by any means causes an animal to move, is said to move that animal, and to move everything which,
in consequence of the motion so caused, is moved by that animal.

Explanation 5
The consent mentioned in the definition may be express or implied, and may be given either by the person in
possession, or by any person having for that purpose authority either express or implied.

INGREDIENTS

The essential ingredients of the offence of theft as embodied in s 378, IPC, is well-explained by the Supreme Court in
a leading decision in KN Mehra v. State of Rajasthan[4]. The alleged theft was of an aircraft, which belonged to the
government (Indian Air Force Academy). Two youngsters, Mehra and Phillips, were cadets on training in the Indian
Air Force at Jodhpur. Phillips was discharged from the Academy on 13 May 1952 for misconduct. On 14 May 1952,
he was due to leave Jodhpur by train. His friend Mehra was due for flight in a Dakota, as part of his training along
with one Om Prakash, a flying cadet. The authorised time to take off flight was between 6 am and 6.30 am on the
morning of 14th May. Mehra and Phillips took off, not a Dakota but a Harvard T-22, before the prescribed time at 5
am without authorisation and without observing any of the formalities, which were pre-requisites for an aircraft flight.
On the forenoon of the same day, they landed at a place in Pakistan about 100 miles away from the Indo-Pakistan
border. On 16 May 1952 at 7 am, both of them met the Indian Commissioner in Pakistan at Karachi, and informed
him that they had lost their way and force-landed in a field and that they had left the plane there. They requested his
help to go back to Delhi. The Indian High Commissioner arranged for both of them to be sent back to Delhi in another
plane. While they were on their way to Delhi, the plane stopped at Jodhpur and they were arrested and prosecuted
for the offence of theft.

One of the main contentions of the accused was that if they had the inclination to take the aircraft to Pakistan, they
would not have contacted the Indian High Commissioner at Karachi later. But the prosecution succeeded in proving
that this apparent innocent move did not necessarily negative their intention at the time of taking off. It may be that
after reaching Pakistan only, the impracticability of their scheme to get employment in Pakistan dawned upon them
and they gave it up. It was enough to constitute the offence that they had the dishonest intention at the
commencement of the journey. The fact that they took off Harvard T-22 plane rather than the allowed Dakota, and left
India at 5 am instead of the scheduled time of 6 am, without waiting for Om Prakash, and that they also refused to
respond to the wireless messages from Indian aerodrome authorities at 11 am, showed that they had the dishonest
intention to take off a Harvard T-22 plane.

The court analysed the offence of theft under s 378 and hence the essential elements to constitute theft are as
follows.

1. It should be a movable property;

2. In the possession of anyone;

3. A dishonest intention to take it out of that person’s possession;

4. Without his consent and

5. A moving in order to such taking.

The accused, in this case, were held guilty of the offence of theft under s 378 of IPC and were sentenced to undergo
imprisonment by the trial court for 18 months and a fine of Rs 750 with simple imprisonment, in default of payment of
fine for a further term of four months. In the final appeal, the Supreme Court reduced the sentence of imprisonment of
the appellant KN Mehra to the period already undergone.

MOVABLE PROPERTY

Movable property is defined in sec 22 as including ‘corporeal property of every description except land and things
attached to the earth, or permanently fastened to anything which is attached to the earth’. Any part of the earth
whether it be stones, or clay or sand or any other component when severed from the earth is moveable property and
is capable of being the subject of theft. A house cannot be the subject of theft, but there may be theft of its materials.
Cart-loads of earth, or stones[5] carried away from the land of another are subjects of theft.

As per the Explanations 1 and 2 attached to Section 378 of IPC, things attached to the land may become movable
property by severance from the earth, and that the act of severance may of itself be theft.

Human body whether living or dead (except bodies, or portions thereof, or mummies, preserved in museums and
scientific institutions) is not movable property.

POSSESSION

The main right of the individual that is sought to be protected under ss 378 and 379 is undoubtedly his possession of
the movables. The word ‘possession’ is not defined in the IPC, though its nature is one aspect indicated in s 27,
wherein it is said that:

When property is in the possession of a person’s wife, clerk or servant, on account of that person, it is in that person’s
possession within the meaning of this Code.

Constructive possession

In certain circumstances, a person who has no actual physical control over a thing will be deemed to have
possession in the eye of law, which is called constructive possession. This is also called de jure possession or
possession in law.

Joint Possession

Where there are several joint owners in joint possession and any one of them dishonestly takes exclusive
possession, he will be guilty of theft[6]. A co-owner of movable property with another, whose share is defined, can be
guilty of theft, if he removes the joint property without consent of the co-owner[7]. Similarly, if a coparcener
dishonestly takes the separate property of another coparcener, he will be guilty of theft[8]. But the removal of even
the whole of the crop by a tenant holding land from zamindar on a varam tenure without delivering it to the zamindar
his share of the crop, does not constitute theft[9].

Mere custody will not amount to possession

This principle is expressly recognised in s 27, IPC. So, where a lady who wanted a railway ticket, handed the money
to a stranger, who was near to the window of the ticket office, that he might procure a ticket for her, and he ran away
with the money, this was held to be theft, as she never parted with the dominion over the money and merely used his
hand in place of her own[10].

Temporary deprivation or Dispossession is also theft

In Pyare Lal Bhargawa v. State of Rajasthan[11], the accused was a superintendent in a government office. At the
instance of somebody, he got a file from the secretariat through the clerk and took the file to his house for a day and
made it available to a person to facilitate the removal of some papers and the insertion of some. Thereafter, the file
was replaced. The question before the Supreme Court was whether the act amounted to theft. The Supreme Court
held that to commit theft, one need not take movable property permanently out of the possession of another, with the
intention not to return it to him. It would satisfy the definition if he took any movable property out of the possession of
another person, though he intended to return it later. When the file was unlawfully taken away from the department,
he deprived the department of the possession of the file and caused wrongful loss to the department. So, it was held
that it amounted to an offence under s 378, IPC. The Supreme Court, in line with the Pyare Lal dictum, in State of
Maharastra[12], held that the transfer of movable property without consent of the person in possession need not be
permanent or for a considerable length of time nor is it necessary that the property should be found in possession of
the accused. Even a transient transfer of possession is sufficient to meet the requisites of theft.
DISHONEST INTENTION

Intention is the gist of the offence. It is the intention of the taker at the time when he removes the article that
determined whether the act is theft or not. The intention to take dishonestly exists when the taker intends to cause
‘wrongful gain’ to one person and ‘wrongful loss’ to another. Wrongful gain or wrongful loss must be involved in
dishonesty[13]. Where, therefore, the accused acting bona fide in the interest of his employees, finding a party of
fishermen poaching on his master’s fisheries, took charge of the nets, and retained possession of them, pending the
orders of his employers, it was held that the accused was not guilty of theft[14]. When dishonest intention is totally
absent, there is no theft[15]. Taking another man’s property believing, under a mistake of fact and in ignorance of law,
that he has the right to take, therefore, does not amount to theft[16]. If the act done is not animo-furandi[17], it will not
amount to theft.

WITHOUT CONSENT

The taking must be without the consent of the person in possession. There can be no theft where the owner actually
consents to or authorises the taking. Thus, where a debtor gives up property to his creditor and subsequently
discovering that the debt was time-barred, charged the latter with theft, the same was held unsustainable in Musumat
Piari Oulaiy[18]a. The consent may be express or implied, may be given bt the person in possession or by any
person having for that authority either express or implied.

MOVING OR TAKING

In addition to all the other ingredients, there must be moving of the property with an intention to take it. As the
essence of the offence consists in the fraudulent taking, that taking must have commenced. The English equivalent
term is asportation, which implies something more than mere moving, which alone is necessary under the IPC. For
instance, where a man lifted up and set on end a package of linen, which was lying in a wagon and cut the wrapper to
get at its contents, but was apprehended before he had taken anything out; and where a pick-pocket got a purse out
of the owner’s pocket, but was unable to carry it away, because it was attached to his pocket by a string, the judges
held that there had been no theft ‘for a carrying away, in order to constitute a felony [there] must be a removal of the
goods from the place where they were; and the felon must, for the instant at least, have the entire and absolute
possession of them’[19]. However in the case of a post office letter carrier, the taking out of the bag in which the
letters were carried during delivery, and placing it in his own pocket was deemed sufficient, the jury having found that
he put the letter in his own pocket intending to steal it[20]. So it was held in the Madras decision Venkataswami[21],
where a letter-sorter instead of handing a letter out for delivery in the usual course, secreted it on his person, that he
might give it to the delivery peon himself with a view to sharing the postage payable by the addressee; the high court
ruled that by this act he took the letter out of the possession of the post office authorities without their consent for a
fraudulent purpose and therefore committed theft.

THEFT BY OWNER OF HIS OWN PROPERTY

Paradoxical as it would seem, there is nothing in law against an owner being held guilty of theft in respect of his own
goods. Theft arises when there is dishonest removal of a thing from the possession of a person who has a rightful
claim to be in possession of it. Where the accused took a bundle belonging to himself, which was in the possession of
a constable and for which the constable was accountable, it was held that the constable had special property in it and
the accused was therefore guilty of theft. A person who removes his own cattle after attachment from the person to
whom they have been entrusted without having recourse to the court under whose orders they were entrusted is
guilty of theft. Similarly, a person who removes his cattle from pound without paying the legitimate fees to the pound-
keeper comes becomes guilty of theft.

THEFT AS BETWEEN HUSBAND AND WIFE

There is no presumption in India, that a husband and wife constitute one person and as such there can be no
prosecution for theft as between them. Hence, if a wife removes her husband’s property from his house with
dishonest intention, she will be guilty of theft. In this case, a Hindu wife, during her husband’s absence, removed his
property from his house to that of her paramour. On the husband’s return, he charged them both with theft and they
were convicted of that offence by the trial court. The conviction was upheld by the Madras High Court.

There is no presumption of law that the wife and husband constitute one person in India for the purpose of criminal
law. Theft is an offence against property. And where there is no community of property, each may commit theft in
regard to the property of the other. The question is one of intention. If the wife, removing the husband’s property from
his house, does so with dishonest intention, she is guilty of theft.

A spouse, therefore, may be guilty of theft if he/she dishonestly removes exclusive property of the other.

DIFFERENCE BETWEEN THEFT AND ROBBERY

S.390 of the IPC states that in all robbery cases, there is either extortion or theft. Theft is ‘robbery’ if, in order to
commit the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the
theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful
restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Extortion is ‘robbery’ if the offender,
at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by
putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some
other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing
extorted.

DIFFERENCE BETWEEN THEFT AND EXTORTION

Section 383 states: Whoever intentionally puts any person in fear of any injury to that person or to any other and
thereby dishonestly induces the person so put deliver to any person any property or valuable security or anything
signed or sealed which may be converted into a valuable security, commits extortion.

As To Consent:
In extortion, consent is obtained by putting the person in possession of property in fear of property in fear of injury to
himself or any other person.
In theft, the offender’s intention is to take the property without the owner’s consent.
There is no element of force in theft.

Property:
In Extortion , both moveable and immoveable property may be the subject of the offence. In theft it is limited only to
moveable property.

Element Of Force:
There is element of force in the offence of extortion as the property is obtained by putting a person in fear ofinjury to
that person or any other.
There is no element of force in theft.

Scope:
Extortion is wider in scope as it coved any kind of property, valuable security or anything that may be converted into
valuable security.
Theft covers only the cases of moveable property.

Taking Of Property:
In extortion, threat may be by one person and the property may be received by another person.
In theft, property must be move by person in order to such taking.

Effect:
In extortion, the property is delivered.
In theft, there is dishonest removal of property.
PUNISHMENT FOR THEFT

According to SECTION 379 OF INDIAN PENAL CODE, Whoever commits theft shall be punished with imprisonment
of either description for a term which may extend to three years, or with fine, or with both.

According to this section, any person who commits the offence of theft will be punished with an imprisonment for a
term of three years or with a fine specified by the court or with both. A person can be punished under this section only
if he has commits theft as per section 378.

FORMS OF THEFT

According to SECTION 380 OF INDIAN PENAL CODE, Whoever commits theft in any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

For attracting s 380 it is necessary to prove that ‘theft’ was committed in a ‘building’, ‘tent’ or ‘vessel’ used as ‘human
dwelling’ or for ‘custody of property’.

The expression ‘building’ conveys a structure, whether covered or uncovered, made of any material whatsoever. The
term postulates some structure intended for affording some sort of protection to the persons dwelling inside it or for
the property placed there for custody. Therefore a structure which does not afford such a protection, though it serves
as a fencing or other means of preventing ingress or egress, cannot be a ‘building’ within the meaning of s 380.

According to SECTION 381 OF INDIAN PENAL CODE, Whoever, being a clerk or servant, or being employed in the
capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or employer,
shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also
be liable to fine.

To attract this section, not only the elements should be proved but also that the accused was a clerk or servant or
employed in the capacity of a clerk or servant and he has removed the movable property out of possession of his
master or employer. A servant or clerk, thus, has more easy opportunity for stealing than other persons would.

A clerk of the tahsil office, who took official papers out of possession of his fellow clerk without consent of the
concerned tahsildar to show them to an advocate of one of the parties to the case, was held guilty under s 381.
However, despite the fact that it is considered an aggravated form of theft, the Gujarat High Court, taking into
consideration the harsh circumstances under which an employee committed theft of a petty sum, took a lenient view
of the matter.

According to SECTION 382 OF INDIAN PENAL CODE, Whoever commits theft, having made preparation for causing
death, or hurt, or restrain, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such
theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property
taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall
also be liable to fine.

The aggravating fact in this section is that the accused who went to steal was also prepared to cause personal injury
or intimidation of the victim, if, the situation so warranted. The preparation may be in the nature of arming himself with
a stick, knife or any other weapon, that is sufficient to cause harm or injury. It is important to note that mere
preparation by a thief to cause harm indicated in the section is enough to bring him under the purview of s 382. It is
neither necessary nor required under the section that hurt be caused or attempted to be caused. But if he, while
committing theft, causes hurt, he becomes liable for committing robbery.

Section 382 is distinguished from that of robbery. If the accused goes beyond the preparation stage and actually
causes hurt, injury, then it will amount to an offence of robbery. But, if it stops with preparation and the accused does
not go beyond it, even if it was because there was no necessity to cause violence then it will be covered by this
section.

RELATED CASES

Ø In Mahabir Singh v Commissioner of Police[22], the Supreme Court held that seizure of vehicle due to default in
the payment of instalments stipulated under the mutually agreed schedule for payment attached to the agreement
cannot be construed as theft.

Ø In K.A. Mathai alias Babu & Anr. Vs. Kora Bibbikutty & Anr[23], the Hon'ble Apex Court had taken a view holding
that in case of default to make payment of installments, Financier had a right to resume possession even if the hire
purchase agreement does not contain a clause of resumption of possession, for the reason that such a condition is to
be read in the agreement. In such an eventuality, it cannot be held that the Financer had committed an offence of
theft and that too, with the requisite mens rea and requisite dishonest intention. The assertions of rights and
obligations accruing to the parties under the hire purchase agreement wipes out any dishonest pretence in that
regard from which it cannot be inferred that Financer had resumed the possession of the vehicle with a guilty
intention.

Ø In the case of Biswanath Patra vs Divisional Engineer[24], it was held that the theft of electricity would not be
charged under section 379 of Indian Penal Code because When there is a specific/special law covering the question
of theft of electricity i.e. Section 135 of the Act, the general law contained in Section 379, IPC will not be applicable.
Special law will always prevail over the general law.

Ø In the case of Kesavan Nair vs State Of Kerala[25], it was held that an intention of the accused to 'take' any
movable property out of possession of another person without the consent of the other person and also an intention
to cause wrongful gain by unlawful means was necessary to be charged under Section 378 IPC. A mere removal of a
movable property by a person from possession of another without the consent of the latter with the sole intention to
evict him from a building will not be sufficient to make out an offence under Section 380 of IPC. Therefore the Charge
against the accused in this case is quashed.

Ø In the case of Charanjit Singh Chadha And Ors. vs Sudhir Mehra[26], it was held that the owner re-possessing the
vehicle delivered to the hirer under the hire purchase agreement will not amount to theft as the vital element of
'dishonest intention' is lacking. The element of 'dishonest intention' which is an essential element to constitute the
offence of theft cannot be attributed to a person exercising his right under an agreement entered into between the
parties as he may not have an intention of causing wrongful gain or to cause wrongful loss to the hirer. The re-
possession of goods as per the term of the agreement may not amount to any criminal offence. The agreement which
they had entered into specifically gave authority to the appellants to re-possess the vehicle and their agents have
been given the right to enter any property or building wherein the motor vehicle was likely to be kept. Under the hire
purchase agreement, the appellants have continued to be the owner of the vehicle and even if the entire allegations
against them are taken as true, no offence was made out against them.

Ø In the case of Bandrappa vs State By Gadigenur Police on 21 March ILR[27], it was held that if a person
dishonestly removes any movable property out of the possession of any person without that person's consent, the
said person would commit theft. The Explanation 1 to the said section says “A thing so long as it is attached to the
earth, not being movable property is not the subject of theft; but it becomes capable of being the subject of theft as
soon as it is severed from the earth”. This explanation makes it further clear that, if the ore is removed from the earth,
then it would be a subject-matter of theft. Illustration (a) to Section 378 of IPC makes it very clear that as soon as
petitioner has severed the iron ore from the land in order to transport the same, it is to be said that he has committed
a theft. In this view of the matter, the contention of the petitioner that the crime does not fall within the definition of
'theft' is liable to be rejected and therefore the accused is liable to be punished under section 379 of IPC.

Ø In the case of M/S. Sundaram Finance Ltd. vs Mohd. Abdul Wakeel And Another[28], it was held that if the
applicant took possession of the vehicle under hire-purchase agreement, it cannot be said that he was guilty of theft
because there was no intention to take the vehicle dishonestly. Thus, the essential ingredient of the offence of theft
as per Section 378 of IPC was not there. Moreover the signing of agreement implied consent to the right of taking the
possession of vehicle on failure of payment of money. Therefore this is not an offence under section 379 of IPC since
the essential ingredient of the section is missing.

CONCLUSION

The actus reus of theft is usually defined as an unauthorized taking, keeping or using of another's property which
must be accompanied by a mens rea of dishonesty and/or the intent to permanently deprive the owner or the person
with rightful possession of that property or its use. These ingredients are necessary to commit the offence of theft
under section 378 of IPC. If any of these ingredients is not found, then it would not come under the purview of sec
378 of IPC and the accused cannot be punished under sec 379 of IPC.

Extortion and robbery

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

THEFT AND EXTORTION DISTINGUISHED

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

1. Intentionally putting a person in fear of injury,

2. The purpose of which is to dishonestly induce the person put in fear,

3. To deliver property or valuable security.

The offence of extortion is intermediary between the offence of theft and robbery. Extortion
becomes robbery, if the offender at the time of committing the offence puts the person in fear
and commits the extortion by causing fear of instant death, hurt or wrongful restraint. However,
in robbery, the property can be removed by force without the person delivering the property.

Before a person can be said to put any person in fear of any injury to that person, it must appear
that he held out some threat to do or omit to do what he is legally bound to do a thing which he
is not legally bound to do and says that if money is not paid to him, he would not do that thing,
such act would not amount to an offence of extortion.

The fear of injury contemplated under Section 383 need not necessarily be bodily harm or hurt.
It will include injuries to mind, reputation or property of the person. The fear must be of such a
nature and extent as to unsettle the mind of the person on whom it operates and takes away
from his acts that element of free voluntary action which alone constitutes consent.

The ‘fear’ must be of such a nature and extent as to unsettle the mind of the person on whom it
operates, and takes away from his acts, that element of free voluntary action which alone
constitutes consent.

The word ‘injury’ is defined in Section 44 of IPC as denoting ‘any harm whatever illegally caused
to any person, in body, mind, reputation or property. The injury contemplated must be one which
the accused himself can inflict or cause to be inflicted and the threat of divine punishment will
not come under it.
The essence of Section 383 is dishonest inducement and obtaining delivery of property in
consequence of such inducement. Therefore, an intention to cause wrongful loss or gain is
essential; merely causing of wrongful loss would not be sufficient.

For an offence under Section 384 actual delivery of property by the person put in fear of injury is
essential. Where a person through fear offers no resistance to the carrying off of his property,
but does not deliver any of the property to those who carry it away, the offence committed is not
extortion but robbery. The offence of extortion is not complete until delivery of property by the
person put in fear.

It is not necessary that the threat should be used, and the property received, by one and the
same person. The threat may be used by one person and the property must be delivered in
consequence of such a threat, i.e., the delivery of property to the person who puts in fear of
injury to the one who delivers that property is not necessary, it may be delivered to any person
at the insistence of the former and in consequence of the threat used. All those persons who
use threat and to whom property is delivered will be liable for the offence of extortion.

The thing delivered under Section 383 may be any property or valuable security, or anything
signed or sealed with may be converted into a valuable security. Valuable security is defined in
Section 30 of the Code thus: “The words ‘valuable security’ denote a document which is, or
purports to be, a document whereby any legal right is created, extended, transferred, restricted,
extinguished or released, or whereby any person acknowledges that he lies under legal
liabilities, or has not a certain legal right.

For example, A writes his name on the back of a bill of exchange and the effect of this
endorsement is to transfer the right to the bill any person who may become the lawful holder of
it, the endorsement is a ‘valuable security’.

The expression ‘anything signed or sealed’ denotes that even incomplete deeds may be the
subject of extortion. If a minor boy is beaten and forced to execute a pronote, the person using
such force would be liable under Section 283, but forcible taking of thumb impression on a piece
of paper which can be converted into a valuable security does not amount to extortion but to an
offence under Section 352 of the Code.

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

PUNISHMENT FOR DIFFERENT TYPES OF EXTORTION

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

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

When theft is robbery:

Theft is “robbery” if, in order to the committing of the theft, or in committing the theft, or in
carrying away or attempting to carry away property obtained by the theft, the offender, for that
end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or
fear of instant death or of instant hurt, or of instant wrongful restraint.

When extortion is robbery:

Extortion is “robbery” if the offender, at the time of committing the extortion, is in the presence of
the person put in fear, and commits the extortion by putting that person in fear of instant death,
or of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by
so putting in fear, induces the person so put in fear then and there to deliver up the thing
extorted.

Explanation:
The offender is said to be present if he is sufficiently near to put the other person in fear of
instant death, or of instant hurt, or of instant Wrongful restraint.

Illustrations:
(a) A holds Z down, and fraudulently takes Z’s money and jewels from Z’s clothes, without Z’s
consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily
caused wrongful restraint to Z. A has therefore committed robbery.

(b) A meets Z on the high road, shows a pistol, and demands Z’s purse. Z, in consequence,
surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt,
and being at the time of committing the extortion in his presence. A has therefore committed
robbery.

(c) A meets Z and Z’s child on the high road. A takes the child, and threatens to fling it down a
precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has
extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there
present. A has therefore committed robbery on Z.

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

Important Points:
A. Meaning:
Robbery means a felonious taking from the person of another or in his presence or against his
will, by violence or putting him in fear. Robbery is an aggravated form of theft or extortion. If
there is no theft or no extortion, there is no robbery.
B. In all robbery there is either theft or extortion:
The framers of the Indian Penal Code observed: “There can be no case of robbery which does
not fall within the definition either of theft or extortion; but in a practice it will perpetually be a
matter of doubt whether a particular act of robbery was a theft or extortion.

A large proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder
him, unless he delivers all his property, and begins to pull of Z ornaments. Z in terror begs A will
take all he has, and spare his life, assists in taking of his ornaments, and delivers them to A.
Here, such ornaments as A took without Z’s consent is taken by theft.

Those which Z delivered from fear of death or acquired by extortion. It is by no means

improbable that Z’s right arm bracelet may have been obtained by theft and left arm bracelet by
extortion; that the rupees in Z’s girdle may have been obtained by theft and those in his turban
by extortion.

Probable in nine-tenths of the robberies which are committed something like this actually takes
place, and it is probable a few minutes later neither the robber nor the person robbed would be
able to recollect in what proportions theft and extortion were mixed in the crime; nor is it at all
necessary for the ends of justice that this should be ascertained.

For though, in general, the consent of a suffer is a circumstance which vary materially modifies
the character of an offence, and which ought, therefore, to be made known to the Courts, yet
the consent which a person gives to the taking of this property by a ruffian who holds a pistol to
his breast is a circumstance altogether immaterial.”

C. When theft is robbery: Before theft can amount to robbery,—

Firstly:
The offender must have voluntarily caused or attempted to cause to any person death or hurt or
wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint,

Secondly:
This must be in order to the committing of theft, or in committing of theft, or in carrying away or
attempting to carry away property obtained by the theft,

Thirdly:
The offender must voluntarily cause or attempt to cause to any person hurt, etc., for that end,
that is in order to committing theft or for carrying away or attempting to carry away property
obtained by the theft,
Fourthly:
The offender must voluntarily attempt one or any of the above acts.

D. When extortion is robbery:

Similar to the above point, extortion becomes robbery if the offender at the time of committing
the extortion is in the presence of the person put in fear and commits the extortion by putting
that person in fear of instant death, or of instant hurt, or of instant wrongful restraint to that
person or to some other, and, by so putting in fear induces the person so put in fear then and
there to deliver up the thing or property extorted.

E. Punishment:
Sec. 392 imposes punishment for robbery. It lies down that whoever commits robbery shall be
punished with rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine; and if the robbery be committed on the high-way between the sun-set and the
sun-rise, the imprisonment may be extended to fourteen years.

Inquiry:
The nature of offence under this Section is cognizable, non-bailable, non-compoundable, and
triable by Magistrate of the first class.

F. Sikander Kumar vs. State [1998 (3) Crimes 69 Delhi HC]

The prosecution was that the two appellants pointed a knife at the complainant and took Rs.
50/- and drove away the auto of the complainant. Next day the accused were arrested in
Nakabandi in presence of complainant. One independent witness turned hostile.

The trial Court imposed punishment against Sikander Kumar and other accused. On appeal, the
Delhi High Court set aside the conviction, opining that entire prosecution story was inherently
improbable and unbelievable. It would be unsafe to place total reliance on testimony of
complainant to base conviction as one independent witness turned hostile.

G. Attempt to commit robbery:

Sec. 393 says that whoever attempts to commit robbery shall be punished with rigorous
imprisonment for a term which may extend to seven years and shall also be liable to fine. The
offence under this Section is cognizable, non-bailable, non-compoundable, and triable by
Magistrate of the first class.

H. Voluntarily causing hurt in committing robbery:

According to Sec. 394, if the offender while committing robbery voluntarily causes hurt to the
complainant, such offender shall be punished with imprisonment with life or with rigorous
imprisonment for a term which may extend to ten years and also fine. The offence under this
Section is cognizable, non-bailable, non-compoundable, and triable by Magistrate of the first
class.

I. Omprakash vs. State (1978 CrLJ 797 All.)

In this case, the accused committed a high-way robbery. They looted the passengers of the bus.
The trial Court imposed punishment for life. On appeal High Court upheld it.

J. Narayan Prasad vs. State of M.P. (AIR 2006 SC 204)

Brief Facts: The accused did robbery and also killed the wife of the complainant. The
complainant identified the accused in the Identification Parade. The accused showed the stolen
property.

Recovery effected at the instance of accused not claimed by them, except one N who claimed
that those were purchased by him under receipt. One of the PWs hostiled. The accused were
convicted by the trial Court and it was confirmed by the High Court.

Judgment:
The Supreme Court confirmed the trial Court judgment.

OF DECOITY-:
Every dacoity is robbery. There is only slight difference between robbery and decoity. Section 391 of
Indian penal code says when five or more person conjointly commit or attempt to commit a robbery or
where the whole number of persons conjointly committing or attempting to commits a robbery and
persons present and aiding such commission or attempt amount to five or more every person so
committing attempting or aiding is said to commit dacoity. It is punishable under section 396 of Indian
penal code it says whoever commits decoity shall be punished with imprisonment for life or with
rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine. In
Kusho Mohtan v. State of Bihar AIR 1980 sc 788; 1980 cr law journal 543 and. Shyam Bihari v. State
of Uttarpradesh AIR 1957 sc 320. are the related case for decoity and punishment for decoity.
DIFFERENCE BETWEEN ROBBERY AND DECOITY.
For an offence of dacoity, minimum number of the miscreants required is five. The term dacoity is
defined in section 391 IPC which clearly postulates that when five or more person conjointly commit or
attempt to commit a robbery or where the whole number of person conjointly committing or
attempting to commit a robbery and person present and aiding such commission or attempt amount
to five or more every person so committing attempting or aiding Is said to commit dacoity. The
offence of robbery is defined in section 390 IPC and as is cleat from a perusal of the said section even
a theft is robbery If during its commission the offender voluntarily causes or attempts to cause to any
person death or hurt or wrongful restrain or fear of instant death or of instant hurt or of instant
wrongful restrain. Whereas robbery is punishable under section 392 IPC dacoity is punishable under se
395 of IPC.
PUNISHMENT FOR DIFFERENT TYPES OF DECOITY
Section 395, punishment for dacoity- Indian penal code provides punishment for decoity; it says
whoever commits dacoity shall be punished with [imprisonment for life] or with rigorous imprisonment
for a term which may extend to ten years and shall also be liable to fine.
It comes into play only when the prosecution makes out an offence under section 390 and the number
of assailants reaches to the statutory minimum. The maximum punishment provided under this
section is life imprisonment for a term which may extend to ten years. Fine also be imposed. Decoity
is considered a very grave and serious crime and hence courts hence held that in cases of dacoity
deterrent sentences is called for. In awarding punishment for an offence under this section two things
are to be considered
1) Having regard to the gravity of the offence committed the punishment that each individual
deserves
2) On the facts and circumstances of a particular case whether a unusually heavy sentence is required
to protect the interests of the public at large by acting as a deterrent to others.
Section 396, Decoity with murder- deals with an aggravated form of decoity. It says if any one of five
or more persons who are conjointly committing dacoity commits murder in so committing dacoity
every one of those persons shall be punished with death or[ imprisonment for life] or regroups
imprisonment for a term which may extend to ten years and shall also be liable to fine.
In order to bring home the offence of dacoity with murder under section 396 it is not necessary to
prove that in under was committed by any particular member of the gang or that it was a common
intention of the gang to commit the murder or that other members of the gang expected the murder
to take place. Nor it is necessary to prove that murder was committed jointly by ll the members of the
gang. All that is required to be established by the preoccupation is that the murder had been
committed while committing a dacoity. If that is established then all the members of the aging who
have committed dacoity are also equally liable for the murder under this section.
CASEREFRED-

decoity with murder depends on facts and circumstances of the case

I am giving a example of a case Shyam Bihari v state of Uttar Pradesh
Facts of the case- in an attempt to commit robbery the appellant killed one of the victims who had
caught hold of the appellant’s associate. The appellant was convicted under section 396 for the offence
of dacoity with murder. The appellant contended that he could not be convicted under section 396 IPC
because any murder committed by the dacoits during their fight when they were running away without
any booty could not be treated as murder committed in the commission of the dacoity.
The high court negative this contention and held that section 396 would be attracted even where an
attempt had been made to commit dacoity and a murder was committed when the dacoits were trying
to make safe retreat and confirmed the sentence of death passed by the session judge. The appeal of
the accused was similarly dismissed by the apex court.
Section 397 robbery or dacoity with attempt to cause death or grievous hurt- This section says if at
the time of committing robbery or dacoity the offender used any deadly weapon or causes grievous
hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with
which such offender shall be punished shall be less than seven years.
Section 398, attempt to commit robbery or dacoity when armed with deadly weapon- the section says
if at the time of attempting to commit robbery and decoity, the offender is armed with any deadly
weapon the imprisonment with which such offender shall be punished shall not be less than seven
years.
Both section 397 and section 398 do not create substantive offence, but merely prescribe a minimum
sentence for the offence of robbery and dacoity mentioned in these sections. Under section 397 of IPC
if at the time of committing robbery or dacoity the offender uses any deadly weapons or causes
grievous hurt or attempts to cause death or grievous hurt, he shall be liable to suffer a minimum
sentence of seven years imprisonment. The essential of this section is as follow-
a) An offence of robbery or dacoity must have been committed
b) The offender should be taken part in the said offence
c) The offender should have used a deadly weapons or cased grievous hurt or attempted to cause
death or grievous hurt to any person at the time of committing a dacoity
in Pholl kumar v delhi administration the accused had entered a petrol pump. The first accused was
armed with a knife while the second accused had small fun in his hand. The first accused asked the
employees of the petrol pump to hand over the keys. To terrorize the employees the second accused
fired three shots in the air. One shot struck the window and two hit the ground. Thereafter they
ransacked the office and decamped with the money, the question threat arose for consideration was
whether the first accused that was carrying a knife with him but did not use it for committing any over
act would be covered under se 397. The Supreme Court held that in section 397 the words used were
the offender uses whereas in section 398 the expression is armed with deadly weapons. Both the
section provides minimum sentences of seven years. The court held that first accused was carrying a
knife which was deadly weapon open to the view of the victims sufficient to frighten or terrorize them.
Any other overt act such as brandishing of the knife or causing of grievous hurt with it. It was not
necessary to bring the offender under this section.
Section 399- preparation of decoity- Whoever makes any preparation for committing dacoity shall be
punished with rigorous imprisonment for a term which may extend to ten years and shall also be liable
to fine?
In our Indian penal code there
is very few section where mere preparation of any offence is punishable for example offence against
country. Preparation of decoity is also one of the offences which preparation is punishable.
Section 402 provides punishment for only for assembling for the purpose of decoity- This section says
whoever at any time after the passing of this act shall be one of five or more person assembled for the
purpose of committing dacoity shall be punished with rigorous imprisonment for a term which may
extend to seven years and shall also be liable to fine.
Section 401, punishment for belonging to gang of thieves- the section says whoever after the passing
of this act shall belong to any wandering or other gang of persons associated for the purpose of
habitually committing theft or robbery and not being a gang of thugs or dacoits shall be punished with
rigorous imprisonment for a term which may extend to seven years and shall also be liable to fine.
Section 403 of Indian Penal Code, 1860
– Explained!
by Pinki Sarkar

Legal Provisions of Section 403 of Indian Penal Code, 1860.

Dishonest misappropriation of property:

This section defines and punishes the offence of dishonest or criminal misappropriation of
property. It says that whoever either dishonestly misappropriates, or dishonestly converts to his
own use, any movable property, Shall be punished with simple or rigorous imprisonment for a
term extending up to two years, or with fine, or with both.

It is clear from the language of the section that the offence of criminal misappropriation of
property can be committed only with respect to a movable property and not against an
immovable property. The offender must dishonestly misappropriate such property or must
dishonestly convert to his own use such property.

In either case, dishonest intention on the part of the offender must always be proved. This has
the same meaning as given under sections 24 and 23 of the Code. Thus, intention to cause
wrongful gain or wrongful loss must always be proved against the offender.

The word ‘misappropriates’ means appropriates in an illegal or unauthorised manner, that is to

say, to set apart for or assign to the wrong person or a wrong use. The words ‘converts to his
own use’ mean wrongfully using the property for his own benefit or appropriating it for his own
self without any authority.

The three illustrations (a), (b) and (c) below the main text help one to distinguish between the
offences of theft and criminal misappropriation of property. It is amply clear from these
illustrations that before the offence of criminal misappropriation of property is committed by the
offender, the movable property which is the subject of this offence is already in possession of
the offender innocently. Therefore, where A first commits theft of X’s watch and then sells it and
utilises the money so earned for himself, A commits only theft and not criminal misappropriation
of property because the watch had not come to the possession of A innocently but by theft.

There are two explanations attached to the section. According to the first, a dishonest
misapprorpriation for a time only is also a misappropriation within the meaning of this section. In
other words, it is not necessary that there should be an intention on the part of the offender to
cause permanent wrongful loss or permanent wrongful gain. If such intention exists even for a
short duration of time, it is punishable under this section. The illustration given under the first
explanation illustrates the point clearly.

The second explanation lays emphasis on a finder’s duty and on his title. It states that a person
who finds such a movable property which is not in the possession of anyone, and he takes such
property with a view to protect the same for its owner or for restoring it to him, he does not take
the same dishonestly or does not misappropriate it or convert the same to his own use, and thus
he is not guilty under this section.

But he commits an offence under this section if he dishonestly misappropriates it or converts the
same to his own use, when he either knows its owner or has the means of discovering its
owner, or before he has used reasonable means to discover and give notice to its owner and
has kept the property for a reasonable time to enable its owner to claim it.

This explanation also emphasizes that what are reasonable means and what is a reasonable
time in such a case is a question of fact, which means that facts and circumstances of each
case will have to be considered before this question can be decided and there can thus be no
general rules to govern it.

The explanation also states specifically that it is not necessary for the finder to know as to who
is the owner of such property or that any particular person is its owner. It is sufficient that at the
time of its misappropriation or conversion by him he does not believe it to be his own property,
or in good faith believes that its real owner cannot be found. The six illustrations given under the
second explanation illustrate this aspect of the law quite clearly.

Where two accused persons took delivery of a necklace from a goldsmith on a false
representation with promise to return the same, but subsequently refused to return it, it was held
that they were guilty under sections 403 and 420 of the Code.

Where the accused found a purse on the pavement of a temple in a crowded gathering and put
the same in his pocket but was caught immediately thereafter, it was held that he could not be
held guilty under this section because merely picking up the purse did not establish dishonest
intention on his part.

Where A paid some money to В under a mistake, and later on when В discovered the mistake
even then he did not return the amount to A and appropriated the same for himself it was held
that he had committed an offence under this section. Since the offence of criminal
misappropriation of property can be committed only after a movable property comes under the
possession of the accused innocently, an abandoned property can never become a subject of
this offence.

Where the accused took delivery of certain consignment received by rail on behalf of the
company in which he was employed, but made no entry of the same in the record of the
company and even gave a false information that he had not taken delivery of the same,
whereas he had removed them from the railway siding, the offence under this section was held
to be committed.

Where certain bales of cloth, in custody of the railways, were found unloaded near the godown
of the accused and they were later recovered from that godown, it was held that on the basis of
this much of facts alone it could not be said that they were dishonestly misappropriated or
converted to his own use by the accused, and as such he could not be held guilty under this
section.

Where a person is the finder of such a property from the nature of which it was natural to
assume that there would be an owner of it, he must take reasonable care of the same and try to
make reasonable efforts to locate its owner, but such efforts could not be such as to make him
spend quite a bit of money on advertisement.

Where the accused had taken a loan from a person but denied having taken it, this in itself
would not make him guilty under this section because attempt to evade civil liability does not
necessarily mean that the accused had dishonest intention.

Where the accused was the chairman of a ‘samiti’ and in that capacity had collected dues from
its members, but he failed to deposit the same even after a long time had elapsed since his
tenure as chairman was over, it was held that he was guilty under this section. The accused bus
conductor had failed to deposit the bus fares allegedly collected by him.

The prosecution failed to establish that he in fact had collected the fares or the amount had
come into his possession thereof. It was held that he could not be held to have committed an
offence under this section. The accused, a servant in the post and telegraph department,
secreted two letters in the course of assisting in the sorting of letters, and his intention for doing
so was to hand them over to the delivery man and share with him certain money payable on
them.
It was held that the accused had committed theft and as well as had attempted to commit
criminal misappropriation of property. The accused, a principal of a school, allegedly drew an
amount for the watchman of the school but this was not borne on the register even though the
watchman accepted receipt of the amount. Other payments of similar nature were also not
entered in the register. It was held that this much evidence alone would not be sufficient to
convict the principal under this section.

In U. Dhar v. State of Jharkhand, two contracts, one between the principal and the contractor
and the other between the contractor and the sub-contractor, were entered into.

On completion of the work the sub-contractor demanded payment to be made to him. When the
same was not done, he filed a criminal complaint alleging that the contractor having received
payment from the principal had misappropriated his money.

The Supreme Court held that this plea was unsustainable because the contract and the sub-
contract were different from each other and the money paid by the principal to the contractor
was not money or movable property of the complainant sub-contractor, and hence there was no
misappropriation. The dispute being about recovery of money, was a dispute of a civil nature
and hence the criminal complaint was not maintainable and was liable to be quashed.

Partner’s liability
In Velji Raghavji v. State, the Supreme Court has held that a partner has undefined ownership
along with the other partners over all the assets of the partnership and if he chooses to use any
of them for his own purposes he may be accountable civilly to the other partners but he does
not thereby commit any misappropriation within section 403 of the Code.

Where a partner complained that the other partner had converted the partnership business into
ownership business and had not paid him his share of the partnership business, the defaulting
partner could not be held guilty under this section unless there was an allegation that the
partnership had been dissolved.

In Anil Saran v. State the Supreme Court observed that where a partner has been entrusted
with property under a special contract and he keeps that property in this fiduciary capacity,
misappropriation of that property would amount to criminal breach of trust.

Exchanging a railway ticket

A and В were about to board a train from Benares City. A had a valid ticket to Ajudhia while В
had a valid ticket to Benares Cantonment. A voluntarily gave her ticket to В to check as to
whether her ticket for the journey was valid. While returning A’s ticket back to her В deliberately
substituted his ticket in its place and gave the same to her while keeping her ticket with him. В
was held guilty of criminal misappropriation of property and not of cheating.

Harvesting crops under attachment

Where the accused judgment debtor, whose standing crops had been attached, harvested the
same while the order of attachment was in force, it was held that he had committed an offence
under this section.

The offence under section 403 is non-cognizable, bailable and compoundable when permitted
by the court which is trying the case, and is triable by any magistrate.

An Introduction to Criminal Breach of

Trust
The provision for Criminal Breach of Trust is mentioned in Chapter XVII under section 405 of
Indian Penal Code. Section 405, of Indian Penal Code states, ‘Whoever, being in any manner
entrusted with property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or disposes of that property in
violation of any direction of law prescribing the mode in which such trust is to be discharged, or
of any legal contract, express or implied, which he has made touching the discharge of such
trust, or willfully suffers any other person so to do, commits criminal breach of trust.’[i]

What does Criminal Breach of Trust mean?

The offence of criminal breach of trust, as defined under section 405 of IPC, is similar to the
offence of ‘embezzlement’ under the English law. A reading of the section suggests that the gist
of the offence of criminal breach of trust is ‘dishonest misappropriation’ or ‘conversion to own
use’ another’s property, which is nothing but the offence of criminal misappropriation defined u/s
403. The only difference between the two is that in respect of criminal breach of trust, the
accused is entrusted with property or with dominion or control over the property. As the title to
the offence itself suggests, entrustment or property is an essential requirement before any
offence under this section takes place. The language of the section is very wide. The words
used are ‘in any manner entrusted with property’. So, it extends to entrustments of all kinds-
whether to clerks, servants, business partners or other persons, provided they are holding a
position of trust. “The term “entrusted” found in a 405, IPC governs not only the words “with the
property” immediately following it but also the words “or with any dominion over the property.”[ii]

Later an explanation was added to it by an amendment in the year 1973, and was later
renumbered as explanation 1 in the year 1975. In the same year, another explanation was
added to it. The explanations to this section are:

Explanation 1[iii]: A person, being an employer [of an establishment whether exempted under
section 17 of the Employees’ Provident Funds and Miscellaneous Provisions Act, 1952 (19 of
1952), or not] who deducts the employee’s contribution from the wages payable to the
employee for credit to a Provident Fund or Family Pension Fund established by any law for the
time being in force, shall be deemed to have been entrusted with the amount of the contribution
so deducted by him and if he makes default in the payment of such contribution to the said Fund
in violation of the said law, shall be deemed to have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.

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

Essentials for Criminal Breach of Trust

The essential ingredients of Criminal breach of trust are:

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

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

There are two distinct parts involved in the commission of the offence of criminal breach of trust.
The first consists of the creation of an obligation in relation to the property over which dominion
or control is acquired by the accused. The second is a misappropriation or dealing with the
property dishonestly and contrary to the terms of obligation created[vi]. The principal ingredients
of Criminal Breach of Trust are thus ‘entrustment’ and ‘dishonest misappropriation’.

Entrustment: As the title to the offence itself suggests, entrustment of a property is an essential
requirement before any offence in this section takes place. The language of this section is very
wide. The words used are, ‘in any manner entrusted with property’. So it extends to
entrustments of all kinds whether to clerks, servants, business partners or other persons,
provided they are holding a position of ‘trust’. The word entrust is not a term of art. In common
parlance, it embraces all cases in which a thing handed over by one person to another for
specific purpose. The term ‘entrusted’ is wide enough to include in its ambit all cases in which
property is voluntarily handed over for specific purpose and is dishonestly disposed of contrary
to terms on which possession has been handed over.[vii] Entrustment need not be expressed, it
can be implied.[viii]

The definition in a 405 does not restrict the property to movables or immoveable alone. In R K
Dalmia vs Delhi Administration[ix], the Supreme Court held that the word ‘property’ is used in
the Code in a much wider sense than the expression ‘moveable property’. There is no good
reason to restrict the meaning of the word ‘property’ to moveable property only, when it is used
without any qualification in s 405. Whether the offence defined in a particular section of IPC can
be committed in respect of any particular kind of property, will depend not on the interpretation
of the word ‘property’ but on the fact whether that particular kind of property can be subject to
the acts covered by that section[x].

The word ‘dominion’ connotes control over the property. In Shivnatrayan vs State of
Maharashtra[xi], it was held that a director of a company was in the position of a trustee and
being a trustee of the assets, which has come into his hand, he had dominion and control over
the same.

However, in respect of partnership firms, it has been held[xii] that though every partner has
dominion over property by virtue of being a partner, it is not a dominion which satisfies the
requirement of s 405, as there is no ‘entrustment of dominion, unless there is a special
agreement between partners making such entrustment.

Explanations (1) and (2) to the section provide that an employer of an establishment who
deducts employee’s contribution from the wages payable to the employee to the credit of a
provident fund or family pension fund or employees state insurance fund, shall be deemed to be
entrusted with the amount of the contribution deducted and default in payment will
amount of the contribution deducted and default in payment will amount to dishonest use of the
amount and hence, will constitute an offence of criminal breach of trust. In Employees State
Insurance Corporation vs S K Aggarwal[xiii], the Supreme Court held that the definition of
principal employer under the Employees State Insurance Act means the owner or occupier.
Under the circumstances, in respect of a company, it is the company itself which owns the
factory and the directors of the company will not come under the definition of ‘employer.’
Consequently, the order of the High Court quashing the criminal proceedings initiated u/ss 405
and 406, IPC was upheld by the Supreme Court.

Misappropriation

Dishonest misappropriation is the essence of this section. Dishonesty is as defined in sec.24,

IPC, causing wrongful gain or wrongful loss to a person. The meaning of wrongful gain and
wrongful loss is defined in sec 23, IPC. In order to constitute an offence, it is not enough to
establish that the money has not been accounted for or mismanaged. It has to be established
that the accused has dishonestly put the property to his own use or to some unauthorized use.
Dishonest intention to misappropriate is a crucial fact to be proved to bring home the charge of
criminal breach of trust.

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

Criminal Breach of Trust by a Public Servant, Banker, Merchant or Agent

As already seen in the previous sections, the acts of misappropriation or breach of trust done by
strangers is treated less harshly than acts of misappropriation or breach of trust who enjoy
special trust and are also in a position to be privy to a lot of information or authority or on
account of the status enjoyed by them, say as in case of a public servant. That is why sections
407 & 408 provide for enhanced punishment of punishment up to seven years in case of
commission of offence of criminal breach of trust by persons entrusted with property as a carrier
or warehouse-keeper.

In respect of public servants a more stringent punishment of life imprisonment or imprisonment

up to ten years with fine provided. This is because of the special status and the trust which a
public servant enjoys in the eyes of public as a representative of the government or government
owned enterprises.

The persons having fiduciary relationship between themselves have a greater responsibility for
honesty as they have more control over the property entrusted to them, due to their social
relationship. A mere carelessness to observe the rules of treasury ipso facto cannot make one
guilty of criminal breach of trust. There must be something more than carelessness, i.e., there
should be dishonest intention to keep the government out of moneys[xvii]. Where under the
rules, a public servant is required to lodge in the treasury any government by the registers in his
hands and the public servant removes the excess from the office cash book, he is guilty of
misappropriation[xviii].

Moneys paid to Post Master for money order are public money; as soon as they are paid they
cease to be the property of the remitters and a misappropriation of such moneys will fall under
this section[xix]. It is not necessary under the section that the property in respect of which the
offence is committed must be shown to property of the State.

Under section 409 of IPC, the entrustment of property or dominion should be in the capacity of
accused as a public servant or in the way of his business as a banker, broker or merchant etc.
The entrustment should have the nexus to the office held by the public servant as a public
servant. Only then this section will apply. In Superintendent and Remembrance of Legal
Affairs v SK Roy[xx], the accused, a public servant in his capacity in Pakistan unit of
Hindustan Co-operative Insurance Society in Calcutta which was a unit of LIC, although not
authorized to do so directly realized premiums in cash of some Pakistani policy holders and
misappropriated the amounts after making false entries in the relevant registers.

To constitute an offence of Criminal Breach of trust by a public servant punishable under s 409
IPC, the acquisition of dominion or control over the property must also be in the capacity of a
public servant. The question before the court was whether the taking of money directly from
policy holders, which was admittedly unauthorized, would amount to acting in his capacity as a
public servant. The Supreme Court held that it is the ostensible or apparent scope of a public
servant’s authority when receiving the property that has to be taken into consideration. The
public may not be aware of the technical limitations of the powers of the public servants, under
some technical limitations of the powers of the public servants, under some internal rules of the
department or office concerned. It is the use made by the public servant of his actual official
capacity, which determines whether there is sufficient nexus or connection between the acts
complained of and the official capacity so as to bring the act within the scope of the section. So
in case, it was held that the accused was guilty of offence under s 409.

An employee of the Indian Airlines, who took excess money from the passengers and pocketed
the same by falsifying reports, was held guilty under s 409 and the Prevention of Corruption Act,
1947[xxi].

In order to sustain conviction under section 409, it is required to prove:

1. Entrustment of property of which accused is duty bound to account for;

2. Commission of Criminal Breach of Trust[xxii].

The prosecution dealing with cases of criminal breach of trust by a public servant is required to
prove not only that the accused was a public servant but also was in a capacity entrusted with
property or with domination over the same and he committed breach of trust in respect of that
property[xxiii].

It is not necessary that the property entrusted to a public servant should be of government. But
what is important is that, the property should have been entrusted to a person in his capacity as
a public servant[xxiv].

Views of Judges & Courts in Various Cases

In State of Gujarat vs Jaswantlal Nathalal[xxv], the government sold cement to the accused
only on the condition that it will be used for construction work. However, a portion of the cement
purchased was diverted to a godown. The accused was sought to be prosecuted for criminal
breach of trust. The Supreme Court held that the expression ‘entrustment’ carries with it the
implication that the person handing over any property or on whose behalf that property is
handed over to another, continues to be its owner. Further, the person handing
over the property must have confidence in the person taking the property. so as to create a
fiduciary relationship between them. A mere transaction of sale cannot amount to an
entrustment. If the accused had violated the conditions of purchase, the only remedy is to
prosecute him under law relating to cement control. But no offence of criminal breach of trust
was made out.

In Jaswant Rai Manilal Akhaney vs State of Bombay[xxvi], it was held that when securities
are pledged with a bank for specific purpose on specified conditions, it would amount to
entrustment. Similarly, properties entrusted to directors of a company would amount to
entrustment, because directors are to some extent in a position of trustee. However, when
money was paid as illegal gratification, there was no question of entrustment.

In State of UP vs Babu Ram[xxvii], the accused, a sub-inspector (SI) of police, had gone to
investigate a theft case in a village. In the evening, he saw one person named Tika Ram coming
from the side of the canal and hurriedly going towards a field. He appeared to be carrying
something in his dhoti folds. The accused searched him and found a bundle containing currency
notes. The accused took the bundle and later returned it. The amount returned was short by Rs.
250. The Supreme Court held that the currency notes were handed over to the SI for a
particular purpose and Tika Ram had trusted the accused to return the money once the accused
satisfied himself about it. If the accused had taken the currency notes, it would amount to
criminal breach of trust.
In Rashmi Kumar vs Mahesh Kumar Bhada[xxviii], the Supreme Court held that when the
wife entrusts her stridhana property with the dominion over that property to her husband or any
other member of the family and the husband or such other member of the family dishonestly
misappropriates or converts to his own use that property, or willfully suffers and other person to
do so, he commits criminal breach of trust. Even failure to handover marriage gifts and
ornaments received from in laws to the wife on being driven out amounts to criminal breach of
trust[xxix]. Taking away such gifts and cash offerings from her by in laws also amounts to
misappropriation.

Analysis & Conclusion

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

1. Section 408 (criminal breach of trust by clerk or servant) should be brought in tune with
its proposed s 381 of the IPC so that breach of trust by any employee in respect of his
employer’s property can be brought within purview of section 408.
2. The maximum punishment (of life imprisonment) provided for criminal breach of trust by
public servant etc, should be scaled down to rigorous imprisonment for a term up to
fourteen years.

Hence it’s clear that for an offence to fall under this section all the four requirements are
essential to be fulfilled. The person handing over the property must have confidence in the
person taking the property, so as to create a fiduciary relationship between them or to put him in
position of trustee. The accused must be in such a position where he could exercise his control
over the property i.e., dominion over the property. The term property includes both movable as
well as immoveable property within its ambit. It has to be established that the accused has
dishonestly put the property to his own use or to some unauthorized use. Dishonest intention to
misappropriate is a crucial fact to be proved to bring home the charge of criminal breach of trust.

It is submitted that the offence of criminal breach of trust is very much common in today’s world.
It happens during the daily routine of a common man’s life. From offices to the marriage
ceremonies, everywhere its presence can be traced. Not only in the truest sense but also there
are many cases of white collar crimes, where the person without any intention involves in such
crimes. The best way to get rid of such crime is by educating people about the stringent laws
regarding this offence. In case of same by public servant, the laws are more stringent and thus
they deter the public servant to commit such crimes.

In this way this section is satisfactory in itself. The provisions laid down in the Indian Penal Code
are enough to cope up with the problem of Criminal Breach of Trust. The only thing required is
the effective implementation as well as application of law as many of the cases go unreported
and through regular investigations they wouldn’t go unnoticed

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

Point of difference criminal misappropriation of criminal breach of trust

property

403 and 404 405

Section

Acquisition of Property comes into the Offender is lawfully entrusted with

property possession of the offender by the property and he dishonestly
some casualty and he misappropriates it or willfully
afterwards misappropriates it. suffers any person so to do.

Character of There is no fiduciary There is conversion of property

possession relationship in this offence. held by a person in a fiduciary
The property comes into the capacity.
possession of the offender
any how

Nature of possession It must be of movable Property may be movable or

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

Legal provisions regarding Stolen

Property (Section 410 of IPC)
by Sukendar Debnath

Legal provisions regarding Stolen Property – Definition under section 410 of Indian Penal Code,
1860.

Section 410 of the code defines stolen property. It gives a narrow definition of the term to
include any property received by theft, extortion, robbery, misappropriation and criminal breach
of trust. Property, which has been obtained by means other than those mentioned above for
example, by forgery, or by cheating, would not fall within the meaning of ‘stolen property’ as
defined in Section 410.

Image Source: cdn.abclocal.go.com

The word ‘property’ has been used in Section 410 to denote only ‘movable property’.

The expression ‘the possession whereof has been transferred’ does not mean that the receiver
should receive directly from the thief. All it implies is that the receiver should receive property
which has been obtained by theft.

In this case, an innocent intermediate transferee does not purge the property of its taint as
stolen property which it continues to be in the hands of all subsequent transferees, except the
person legally entitled to its possession. The word ‘possession’ is used here in its widest sense
as implying custody or control, whether temporary or permanent or exclusion of or jointly with
the thief. Manual possession is not necessary.

The expression whether the transfer has been made or the misappropriation of breach of trust
has been committed, within or without India’ means whether the substantive offence of theft or
the subsidiary offence of receiving was committed within or without India. These words were
inserted by Section 9 of the Indian Penal Code (Amendment) Act 1682, though the term ‘India’
was substituted in 1951, for the term ‘the State’.

To be termed stolen property, the property must have gone out of the control of the owner and it
must have been received by the accused as stolen property and not in any other manner.

Property, the possession of which has been transferred by theft or the other offences is
designated stolen property. It is, therefore, a term which equally applies to property in the hands
of the thief or of a receiver other than the thief. As regards property acquired by theft, extortion
and robbery, the property is called stolen property.

The property in the possession of a thief who runs away with stolen property is property so-
called, though there has not been ‘transfer’ in the real sense of the term, and though his
possession is insecure.

But insecurity of possession is an incident of all stolen property and its transfer does not
demand complete transmutation of possession which is not even the incident of a legal transfer.
Indeed, the gist of the term lies in the intention as will be seen presently.

To be termed stolen property, the properly must have gone out of the control of the owner and it
must have been received by the accused as stolen property, and not in any other manner.

Section 410 merely specifies the attributes of stolen property which however by themselves do
not constitute an offence. Section 410 confined the definition of stolen property only to property
which was the actual subject-matter of theft. It excludes all property which the stolen property
has been converted into or exchanged for.

When it will cease as stolen property:

It stolen property subsequently comes into the possession of a person legally entitled to the
possession thereof; it then ceases to be stolen property. Property once stolen retains that
character so long as it remains out of the possession of the person lawfully entitled to it.
Hence, as an owner may commit theft of his own property, so he may be also in possession of
stolen property which is his own. This is obvious from the fact that the three offences of theft,
extortion and robbery are intended only to property misappropriated “if such property
subsequently comes into the possession of a person legally entitled to the possession thereof”,
must mean the owner as distinct from the person in possession.

This is evident from the fact that the possession of a misappropriator is not ab initio wrongful. It
becomes wrongful only with the change of intention. Consequently, legal possession of property
may, with the change of intention, be converted into stolen property.

In R.V. Villensy [(1892) 2 QB 597], a parcel was handed to the prosecutors, a firm of carriers,
for conveyance to the consignees. While in the prosecutor’s depot, a servant of the prosecutor’
removed the parcel to a different part of the premises and placed upon it a label addressed to
the accused.

The superintendent of the prosecutor’s business, on receipt of information as to this, and after
inspection of the parcel, directed it to be sent to the addressee in a van, along with two
detectives. The parcel was duly received by the accused under the belief that it was stolen. It
was still held by the court that the property having come under the possession of the actual
owners before its receipt by the accused, it had ceased to be stolen property and the accused
could not be convicted of receiving it knowing it to have been stolen.

In Kishan Lal v. State of Uttar Pradesh [(1979) CrLJ 309 (All)], four thieves stole goods from the
custody of a railway company and sent them by a parcel in the same company’s line addressed
to the accused. During the transit, the theft was discovered, and on the arrival of the parcel at
the station for delivery, a policeman in the service of the company opened it, and then returned
it to the porter, who was under the duty to deliver it, under instructions to keep it till further order.

On the following day, the policeman ordered the porter to take it to address, where it was
received by the accused. The police thereafter got hold of him. The court held that the goods
had reached its lawful owner, the railway company, so that it could no longer be called stolen
goods and thus, the receipt of it could in no way be receipt of stolen property.
Essential Ingredients of the offence of
dishonestly receiving Stolen Property
(Section 411 of IPC)
by Sukendar Debnath

Legal provisions regarding Essential Ingredients of the offence of dishonestly receiving Stolen
Property under section 411 of Indian Penal Code, 1860.

Essential Ingredients of the offence of dishonestly receiving Stolen Property:

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

Image Source: i.ytimg.com

(i) That the property in question was stolen property;

(ii) That the stolen property was in the possession of the accused;

(iii) That it was dishonestly received or retained; and

(iv) The accused knew or had reason to believe that the, property was stolen property.

1. Stolen Property:
Section 411 deals with the receipt of stolen property. As per Section 410, “property, the
possession where of has been transferred by theft, or by extortion, or by robbery, and property
which has been criminally misappropriated or in respect of which criminal breach of trust has
been committed, is designated as ‘stolen property’.”

To prove the offence under Section 411, the prosecution should prove that the property stolen
must have been acquired by theft or criminal misappropriation or other offences alien to them.
To punish the accused under Section 411, it is necessary to prove all the circumstances
constituting the property as stolen property.

Property into or for which the stolen property has been converted or exchanged is not stolen
property. An ingot obtained by melting stolen jewellery is not stolen property. A contrary view
has been taken to say that an ingot made out of stolen ornaments by melting still retains its
character of stolen property. But if stolen property is converted into cash, such cash cannot be
regarded as stolen property.

In Re Gaune Vithu Ghode [(1942) Cri. Appeal No. 187 of 1942 Unrep (Bom)] it was observed
that if a gold necklace is stolen and exchanged for another necklace or melted down and
converted into an ingot, it does not cease to be the same golden necklace that was stolen. What
was stolen was gold in the form of a necklace, and what is produced is the same necklace in the
form of an ingot.

A person may abandon his property and things of which the ownership has been abandoned
are not capable of being stolen.

Such property cannot, therefore, be the subject of an offence under Section 411.

2. Possession:
It is not necessary that the stolen goods should have been physically produced from the actual
possession of the accused. It is sufficient to show that the accused after the articles were stolen
came into control of stolen goods and that he did so dishonestly or having reason to believe that
it was stolen.

Dishonest receipt and retention implies possession, and such possession to be criminal must be
actual and exclusive, the criminal liability does not attach to constructive possession, as of the
karta of a joint Hindu family who though presumed to be in possession of the entire family
property, could not, on that assumption, be held criminally liable for stolen goods brought into
the house by other members of the family.

The word ‘possession’ in this connection obviously means conscious possession, for any other
possession could not be taken into account in charging person with criminal liability. As has
been expressly provided for in Section 411 such person must be both dishonest and with
knowledge of or belief in the stolen character of the property.

An accused can be said to have committed the offence of receiving stolen property in respect of
only the property recovered from him. The fact that the rest of the property stolen has not been
recovered from him does not affect his liability. Mere knowledge as to the whereabouts of the
stolen property will not make any person liable under Section 411.
In Trimbak v. State [AIR 1954 SC 39] it was observed that the field from which the ornaments
were recovered is an open one and accessible to all and sundry, it is difficult to hold positively
that the accused was in possession of those articles. The fact of recovery by the accused was
compatible with circumstances of somebody else having placed the articles there, and of the
accused somehow acquiring knowledge about their whereabouts. That being so that fact of
discovery could not be regarded as conclusive proof that the accused was in possession of
those articles.

3. Dishonestly receiving or retaining stolen property:

Section 411 does not deal with mere receipt of the property, but clearly indicates the necessity
of a dishonest intention. It is necessary for the prosecution to establish that the accused has
either dishonestly received or retained the stolen property. In either case, the accused must
receive it from another. It is necessary for the prosecution to prove that there was some other
person who was in possession of the property before the accused has either received it or
retained it.

The dishonest ‘reception’ is different from dishonest ‘retention’. In dishonest reception,

dishonesty is contemporaneous with the act of such acquisition who in dishonest retention,
dishonestely supervenes after the act of acquisition of possession. To constitute dishonest
retention, there must have been a change in the mental element of possession, possession
always subsisting animo et facto – from an honest to a dishonest condition of the mind in
relation to the thing possessed.

A person who retains possession of property dishonestly, therefore, possesses it dishonestly.

But he who possesses it dishonestly does not necessarily retain it dishonestly. Dishonest
retention thus implies a charge in the mental element of possession from ‘honest’ to ‘dishonest’
in relation to the thing possessed.

According to Section 411, liability is imposed not only on those who receive stolen property,
knowing it to be stolen but also on those who receive the property honestly, but later on retain it
dishonestly. Thus, the liability of a person who retains dishonestly a property that he received
honestly, is not less than that of a person who receives it dishonestly.

4. Receiving or retaining stolen property with knowledge:

The offence made punishable under Section 411 is not the receiving of stolen property from any
particular person, but receiving such property knowing it to be stolen. The accused must have
known or must have had reason to ‘believe’ the property to be stolen.
The word ‘believe’ is a much stronger word than ‘suspect’ and it involves the necessity of
showing that the circumstances were such that a reasonable man must have felt convinced in
his mind that the property with which he was dealing must be stolen property.

It is not sufficient to show that the accused was careless, or he had reason to suspect that the
property was stolen or that he did not make sufficient enquiry to ascertain if it had been honestly
acquired. It is immaterial whether the receiver knows or not who stole it. Initial receipt of
property may be lost but its retention becomes dishonest if he continues to possess it even after
he comes to know that property is stolen.

In Bhanwarlal v. State of Rajasthan [(1995) CrLJ 625 (Raj)], the accused purchased 9 kgs silver
for a paltry sum deliberately knowing to be stolen property, it could not be said of him that he
was a bona fide purchaser. Silver ingots were recovered at his instance from several persons.
His conviction was held to be sustainable.

In Nagappa Dhondiba v. State [AIR 1980 SC 1753] it was observed that where stolen
ornaments of the deceased which she had been wearing when she was last seen alive are
discovered within three days of the murder in pursuance of an information given by the accused
and there is no other evidence, the accused can be convicted only under Section 411 and not
under Section 302, IPC or Section 394, IPC as there is nothing to connect him with the murder
or the robbery.

In State of Karnataka v. Abdul Gaffar [2000 CrLJ 4456 (Kant)], a copper pot with Rs. 200 in it
was stolen from a temple, the presumption of theft was raised against the person in whose
possession it was found. The property was worth Rs. 600 only. Considering the fact that it was
stolen from a temple, a fine of Rs. 2000 was imposed under Section 411.

The offence under Section 411 is cognizable, and warrant should, ordinarily, issue in the first
instance. It is both non- bailable and non-compoundable and is triable by any Magistrate
summarily if the value of property stolen does not exceed Rs. 200.
Section 413 of Indian Penal Code, 1860
– Explained!
by Pinki Sarkar

Legal Provisions of Section 413 of Indian Penal Code, 1860.

Habitually dealing in stolen property:

Habitually receiving or dealing in stolen property has been made punishable under this section.
The section states that whoever either habitually receives or habitually deals in property which
either he knows or has reason to believe to be stolen property, shall be punished with
imprisonment for life, or with simple or rigorous imprisonment for a term extending up to ten
years, and shall also be liable to fine.

Image Source: media.cmgdigital.com

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

The offence under this section is cognizable, non-bailable and non-compoundable, and is triable
by court of session.

S. 412

Dishonestly receiving property stolen in the commission of a dacoity

Description
Whoever dishonestly receives or retains any stolen property, the possession whereof he
knows or has reason to believe to have been transferred by the commission of dacoity, or
dishonestly receives from a person, whom he knows or has reason to believe to belong or
to have belonged to a gang of dacoits, property which he knows or has reason to believe
to have been stolen, shall be punished with imprisonment for life, or with rigorous
imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Classification u/schedule 1 CrPC
Offence
Dishonestly receiving stolen property, knowing that it was obtained by Dacoity
Cognizance Bail
Cognizable Non-Bailable

Composition u/s 320 CrPC

Offence is NOT listed under Compoundable Offences

Section 414 of Indian Penal Code, 1860

– Explained!
by Pinki Sarkar

Legal Provisions of Section 414 of Indian Penal Code, 1860.

Assisting in concealment of stolen property:

Voluntarily assisting in concealing, disposing of or making away with stolen property has been
made punishable under this section. The section states that whoever voluntarily assists either in
concealing or disposing of or making away with property which he either knows to be stolen
property or which he has reason to believe to be stolen property, shall be punished with simple
or rigorous imprisonment for a term extending up to three years, or with fine, or with both.

Image Source: theavtimes.com

The assistance on the part of the accused must be voluntary and it must be in concealing or in
disposing of or in making away with property. He must also know or must have reason to
believe that the property is stolen property.

The Supreme Court has held that it is not necessary that an accused could be convicted under
this section only when another person is traced out and convicted of committing theft. The only
thing that is needed to be proved is that the property recovered was a stolen property and the
accused voluntarily assisted in concealing or disposing of or making away with it knowing or
having reason to believe that it was a stolen property.

Where property belonging to the deceased was recovered from the possession of the accused
and the accused could not be convicted of murder of the deceased and of committing theft of
his property because of lack of proof, he could be held guilty under this section. The accused
driver of a taxi was carrying several passengers in his taxi when it stopped at a place for
unknown reasons and two of its passengers got down from it and suddenly attacked a person
and relieved him of fifty rupees after which they again boarded the taxi and the driver sped away
even when the victim continued to cry. It was held that the accused driver was guilty under
section 414.

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

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

Legal Provisions Regarding “Cheating”

– Section 415 of IPC
by Prajwal Poojary

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

image source: natcom.org

Section 417 explains the punishment for cheating. Section 418 explains cheating with
knowledge that wrongful loss may ensue to person whose interest offender is bound to protect.
Section 419 explains the punishment for cheating by personation. Section 420 explains cheating
and dishonestly inducing delivery of property.

Definition:
Section 415 defines “Cheating”. It has given 9 illustrations giving the clear picture.

Sec. 415. Cheating:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived
to deliver any property, to any person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything which he would not do
or omit if he were not so deceived, and which act or omission causes or is likely to cause
damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation:
A dishonest concealment of facts is a deception within the meaning of this Section.

Illustrations:
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and thus
dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A
cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this
article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy
and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that
the article corresponds with the sample, and thereby dishonestly induces Z to buy and pay for
the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and
by which A expects that the bill will be dishonoured, intentionally deceives Z, and thereby
dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds articles which he knows are not diamonds, intentionally
deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend him
and thereby dishonestly induces Z to lend him money, A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of
indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance
money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money,
intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he
does not cheat but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with
Z, which he has not performed and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no
right to the property, sells or mortgages the same to Z, without disclosing the fact of the
previous sales and conveyance to B, and receives the purchase or mortgage money from Z. A
cheats.

Important Points:
A. Ingredients of Cheating:
The ingredients of Section 415 are as follows:

a. The accused must have induced fraudulently or dishonestly a person.

b. The deceived should be induced to deliver any property to any person or to consent that any
person shall retain any property.

c. If the person deceived, must be intentionally induced by the wrong-doer to do or omit to do

anything which he would not do or omit if such deceived person was not so deceived.

d. The deceived should suffer any damage or harm in body, mind, reputation or property by the
deceitful act of the wrong doer.

e. A dishonest concealment of facts is also treated as a cheating.

B. Fraudulently or Dishonestly:
These words in the Section are most important. These words denote the elements of deception
and dishonest intention. A willful misrepresentation of a fact with intention to defraud another
person is cheating.
C. When a person cheats another, the deceived person must have suffered or injured in body,
mind, reputation or property. Where no loss or damage was caused to the person deceived, the
accused cannot be punished for the offence of cheating.

D. Property:
Property may be of any kind movable or immovable. The property need not necessarily belong
to the person deceived. A passport, an admission card to an examination, title deeds, salary of
a person, health certificate, etc., are deemed as property for the purpose of this Section and
Section 420.

E. Mens Rea:
Mens Rea (guilty intention) is an essential element of the offence of cheating. The very purpose
and aim of the accused are to procure the property by means of deceiving the victim/
complainant. The accused induces the deceived with fraudulent and dishonest intention.

In Chinthamani vs. Dyaneshwar (1974 CrLJ 542 Bombay) case, the accused sold the property
to the complainant. In fact, they said property was already mortgaged to some other person.
The accused concealed the mortgage and registered it in favour of the complainant and
received full consideration. The High Court held that it was a clear cheating offence.

F. Cheating by Personation:
Section 416 lays down that a person is said to “Cheat by personation” if he cheats by pretending
to be some other person, or by knowingly substituting one person for another, or representing
that he or any other person is a person other than he or such other person really is. The offence
is committed whether the individual personated is a real or imaginary person.

Illustrations:
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by
personation.

(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.

G. M.N.A. Aachar vs. Dr. D.L. Raja Gopal (1977 CrLJ 228 Karnataka):
In this case, the accused was already married. He represented himself to be a bachelor and
married with the complainant’s daughter. The accused was held guilty of offence of cheating by
personation and also under Section 494 (Bigamy.)

H. Punishment for Cheating:

Section 417 imposes the punishment for cheating with imprisonment of either description for a
term which may extend to one year, or with fine, or with both. Nature of offence: The offence
under this Section is non-cognizable, bailable, compoundable with permission of the Court
before which any prosecution of such offence is pending, and triable by any Magistrate.

I. Cheating with knowledge that wrongful loss may ensue to person whose interest
offender is bound to protect:
Section 418 provides that whoever cheats with the knowledge that he is likely thereby to cause
wrongful loss to a person whose interest in the transaction to which the cheating relates, he was
bound, either by law or by a legal contract, to protect, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both. Nature
of offence: The offence under this Section is non-cognizable, bailable, compoundable with
permission of the Court before which any prosecution of such offence is pending, and triable by
any Magistrate.

J. Punishment for cheating by personation:

Section 419 imposes punishment for the offence of cheating by personation with imprisonment
of either description for a term which may extend to three years, or with fine, or with both.
Nature of offence: The offence under this Section is cognizable, bailable, compoundable with
permission of the Court before which any prosecution of such offence is pending, and triable by
any Magistrate.

K. Cheating and dishonestly inducing delivery of property:

Section 420 provides that whoever cheats and thereby dishonestly induces the person deceived
to deliver any property to any person, or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or filed, and which is capable of being converted
into a valuable security, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine. Nature of offence: The offence
under this Section is cognizable, bailable, compoundable with permission of the Court before
which any prosecution of such offence is pending, and triable by any Magistrate.

L. Section 420 is an aggravated form of cheating:

In Section 417 a general provision is made defining the cheating. For the cases in which
property is transferred, the specific provision is made in Section 420. However the offence of
cheating of any person by delivery of property is punishable under either of the two Sections.
But where the case appears to be of a serious nature, then the prosecution may be conducted
under Section 420.
M. Mobarik Ali Ahmed vs. the State of Bombay (Air 1957 SC 857)
Brief Facts:
The appellant/Mobarik Ali Ahmed was doing business in the name of “Atlas Industrial and
Trading Corporation” and “Ifthiar Ahmed & Co.” in Karachi. The complainant/Luis Antonio
Correa was a businessman, doing business in Goa. In the year 1951, there was scarcity of rice
in Goa.

The complainant contacted the accused/appellant for the supply of 2,000 tons of rice, which was
agreed by the accused subject to the condition that 50% of the value payable in advance,
before the shipping and remaining after the documents of shipping received.

Accordingly the complainant paid Rs. 81,000/ – (on 23-7-1951) Rs. 2,30,000/- (on 28-8-1951)
and Rs. 2,36,900/- (on 29-8-1951) to the appellant/ accused through his agent. The appellant
received the above mentioned cash but did not supply the rice.

The complainant waited for one year and then initiated criminal proceedings against the four
directors of the appellant company, i.e., MobarikAli, Santran, A.A. Rowji and S.A. Rowji.

The last three accused absconded. The appellant fled to England. The Indian Authorities made
an application to the Metropolitan Magistrate, Bow Street, London, who ordered the arrest of the
appellant. He was brought to Bombay and then was tried.

The trial Court proceeded against the appellant and found him guilty under Section 420, and
imposed penalty and imprisonment for three years and ten months. On appeal Bombay High
Court confirmed the conviction. The appellant appealed to the Supreme Court.

Judgment:
The Supreme Court held: “The appellant ceased to be an Indian citizen and was a Pakistani
national at the time of the commission of the offence, he must be held guilty and punished under
IPC notwithstanding he is not being corporeally present in India at that time.”

Principles:
1. A conviction of an accused person under Sec. 420 would be valid though the charges under
Sec. 420 read with Sec. 34 unless prejudice is shown to have occurred.

2. That all the ingredients necessary for finding the offences of cheating under Sec. 420 read
with Sec. 415 occurred at Bombay. In that sense the entire offence was committed at Bombay
and not merely the consequence, viz., delivery of money which was one of the ingredients of the
offence.

3. Though the appellant was a Pakistani national at the time of the commission of the offence,
he must be held guilty and punished under the Penal Code notwithstanding his not being
corporeally present in India at the time because on a plain reading of Section. Section 2 of the
Penal Code applied to him.

4. That the fastening of criminal liability on the appellant, who was a foreigner, was not to give
any extra-territorial operation to the law, in as much as the exercise of criminal jurisdiction in the
case. Where all the ingredients of the offence occurred within the municipal territory was
exercise of municipal jurisdiction.

N. John McIver vs. Emperor (AIR 1936 FB Mad. 353)

Brief Facts:
J. McIver (A-1) was a Stock Broker under the name “Huson Tud & Co.” in Madras. K.S.
Narasimha Chari (A-2) was an employee of accused-1. A-1 met one Rao Bahadur Boora
Lakshmaiah Chetty on 14-3-1935 representing that their company had entered into a contract
with the Imperial Bank of India under which they were under an obligation to sell and to deliver
them 6 1/2% interests. 1935 Bombay Development Loan Bonds of the face value of Rs.
3,50,000/- and that the last date was 27-3-1935. Believing the words of A-1, the
complainant/Rao Bahadur handed over the cash.

Accused-1 did not hand over the Bonds and postponed under one pretext or the other. The
complainant filed a complaint in the Court of the Presidency, Egnore against the accused-1 & 2,
under Sec. 403 & 420 of the I.P.C. (Cheating and Criminal Breach of Trust)

The accused compromised with the complainant and as a result he was acquitted from the
charges. At this junction the State interfered and appealed to the Madras High Court contending
that the Magistrate had no powers to compound the case, when once he issued summons. The
accused pleaded “autrefois acquit”, (the accused once acquitted cannot be punished or tried on
the same charge). The question of law arose.

Judgment:
The Madras High Court Full Bench gave the judgment in favour of the accused.

Principles:
1. There can be no consent by a person who is cheated and of there is deceit which prevented
any true consent arising there could be no entrusting; the terms are mutually exclusive.

2. The word “entrusted” should be construed as it access in the Section headed “criminal breach
of trust”. The notion of a trust in the ordinary sense of that word is that there is a person the
transferee or the entrusted, in which confidence is reported by another who commits property to
him; and this again supposes that the confidence is freely given.

A person who tricks another into delivering property to him bears no resemblance to a trustee in
the ordinary acceptation of that term and Sec. 405 given no sanction to regarding him as a
trustee. The essence of the criminal breach of trust is the dishonest conversion of property
entrusted, but the act of cheating itself involves a conversion.

Conversion signifies the depriving of the owner of the use and possession of his property. When
the cheat afterward sells or consumes or otherwise uses the fruit of his cheating he is not
committing an act of conversion for the conversion is already done, but he is furnishing
evidence of the fraud he practised to get hold of the property. Therefore, cheating is a complete
offence by itself.

O. Abhayanand Mishra vs. State of Bihar (AIR 1961 SC 1698)

Brief Facts: The appellant sought the permission of Patna University for appearing M.A.
examinations (English) in 1954. He enclosed the attested copies of B.A. Degree and permission
letter from the Head Master of the school in which he was working.

Permission was granted by the University. Before commencing the examinations, the University
authorities received the information that the appellant did not pass B.A., and was not working as
a teacher, and that he was debarred from the University.

They reported the matter to the police, who investigated and filed the charge, sheet against the
appellant under Section 420, and 511. The trial Court convicted him.

On appeal the High Court upheld the conviction. He appealed to the Supreme Court contending
that an admission card to sit for M.A. examination had no pecuniary value and therefore the
provision of Sec. 420 would not be attracted.

Further he contended that he applied to the University for the permission, and it was a mere
preparation and it could not be treated as an attempt under Sec. 511.
Judgment:
The Supreme Court dismissed the appeal. It upheld the judgments of the Lower Court and the
High Court.

Principles:
1. An admission card to sit for an examination of a University is property within the meaning of
Sec. 420. Though the admission card as such has no pecuniary value it has immense value to
the candidate for the examination.

2. There is a thin line between the preparation for and an attempt to commit an offence.
Undoubtedly a culprit first intends to commit the offence, then makes preparation for committing
it and therefore, attempts to commit the offence.

If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his
control, he is said to have attempted to commit the offence.

Therefore, attempted to commit the offence can be said to begin when the preparations are
complete and the culprit commences to do something with the intention of committing the
offence and which is a step towards the commission of the offence. The moment he
commences to do an act with the necessary intention, he commences his attempt to commit the
offence.

P. Dr.Vimala vs Delhi Administration (AIR1963 SC 1572)

Q. Breach of contract:
There is a clear distinction between mere breach of contract and the offence of cheating. It
depends upon the intention of the wrong-doer at the time of the inducement and his subsequent
conduct. Mere breach of contract cannot give rise a criminal prosecution.

R. Nageshwar Prasad Singh vs. Narayan Singh and others (1998 (5) SCC 694)
Brief Facts:
Nageshwar Prasad Singh the appellant herein has certain property in Patna. Narayan Singh
and others, the respondents herein, contracted Nageshwar Prasad Singh to purchase a plot for
certain consideration. Sale deed was concluded. Narayan Singh paid earnest money to the
appellant and agreed to pay the balance at a future date. Nageshwar Prasad handed over the
site to Narayan Singh.

Narayan Singh started construction. Narayan Singh filed a civil case for specific performance of
the contract in a civil Court against Nageshwar Prasad. Besides it, Narayan Singh being an
advocate also filed a cheating case against Nageshwar Prasad alleging that Nageshwar did not
fulfil the contract.

Nageshwar Prasad contended that being it was a breach of contract from the respondent
Narayan Singh the provisions of Section 420 would not attract in this case. The High Court
dismissed his appeal.

On appeal, the Supreme Court held that it was purely a breach of contract and the tricks played
by Narayan Singh to delay the payment and harass the land owner. It quashed the trial Court’s
judgment under Section 420, and also the decision of the High Court’s decision, and ordered
Narayan Singh to pay Rs. 10,000/- to the appellant/Nageshwar Prasad for the vexatious
proceedings.

S. Ram Prakash Singh vs. State of Bihar (1998 (1) SCC 173)
Brief Facts:
The accused/appellant was a development officer in LIC. He introduced some false and fake
insurance proposals to LIC with a view to earn promotion on the basis of inflated business.
Contents of proposals were in the handwriting of accused.

The trial Court punished the accused under Sections 420. He appealed to the High Court. The
High Court upheld the conviction. He appealed to the Supreme Court contending that on the
basis of the proposals the policies were not issued and no loss occurred to LIC, and his acts
should be treated as preparation. The Supreme Court held that the accused was rightly
convicted by the Courts below