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‘Offences Against Property’
Prof. Santosh D. Bhosale 124
(..19..)
OFFENCES AGAINST PROPERTY
QUESTION BANK
Q. 1 Explain the ingredient of offence of cheating
Q. 2 In all Robbery, there is either theft or exotic elucidates. Distinguish between
Robbery and Dacoity
Q.3 Define & explain ‘Robbery’ and distinguish it from ‘Dacoity’
Q.4 Define and explain ‘cheating’
Q.5 Define and explain ‘Theft’
Q.6 What is extortion? Distinguish it from robbery.
SHORT NOTES
1. Cheating by personation.
2. Robbery & Dacoity
3. Theft and extortion
4. Criminal misappropriation and criminal branch of trust.
5. Mischief
6. Criminal breach of Trust.
7. Cheating.
INTRODUCTION:-
Chapter XVII of the Code is the second longest chapter in the Code. It consists of
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sections 378 to 462.
Offences against property can be divided into three groups, viz. -
A)
B)
C)
Offences dealing with deprivation of property (Ss.378 to 424)
Offences dealing with damage to property (Ss.425 to 440)
Offences in relation to violation of rights to property in order
to commit some other offences (Ss.441 to 462)
A)
Offences Dealing with Deprivation of Property (Ss.378 to 424):-
1)
2)
3)
4)
5)
6)
7)
8)
9)
Theft
Extortion
Robbery
Dacoity
Criminal misappropriation of property
Criminal breach of trust
Receiving stolen property
Cheating
Fraudulent deeds and disposition of property
B)
C)
Offences Dealing with Damage to Property (Ss.425 to 440)
1) Mischief.
Offences in Relation to Violation of Rights to Property in order to Commit
some other Offences (Ss.441 to 462)
1)
2)
3)
4)
Criminal Trespass.
House Trespass.
Lurking House Trespass.
Housebreaking.
1)
I]
THEFT (Ss.378 to 389):-
Definition:-
Whoever-
i)
Intending to take dishonestly,
ii)
iii)
iv)
v)
Any movable property,
Out of the possession of any person
Without the consent of that person
Moves that property in order of such taking
- is said to commit theft (S.378)
II]
Explanations:-
Five explanations are provided for the definition of theft.
Explanation 1: - A thing so long as it is attached to the earth, not being
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moveable 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 move effected by the same act that affects the severance may be
theft.
Explanation 3: - A person is said to cause a thing to move by removing an obstacle
that 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 expressed 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.
Illustrations
a)
A cut down a tree on Z’s ground with the intention of dishonestly taking the
tree out of Z’s possession without Z’s consent. Here, as soon as A has severed
the tree in order to do such taking, he has committed theft.
b) A puts bait for dogs in his pocket and thus induces Z’s dog to follow it. Here, if
A’s intention is dishonest to take the dog out of Z’s possession without Z’s
consent, A has committed theft as soon as Z’s dog has begun to follow A.
c) A meets a bullock carrying a box of treasure. He drives the bullock in a
certain direction in order that he may dishonestly take the treasure. As soon as
the bullock begins to move, A has committed theft of the treasure.
d) A, being Z’s servant and entrusted by Z with the care of Z’s plate, dishonestly
1
e) Z, going on a journey, entrusts his plate to A, the keeper of a warehouse, till Z shall return. A carries the plate to
a goldsmith and sells it. Here the plate was not in Z’s possession. It could not therefore, be taken out of Z’s possession,
and A has not committed theft, though he may have committed criminal breach of trust.
f) A finds a ring belonging to Z on a table in the house which Z occupies, Here the ring is in Z’s possession, and it A
dishonestly removes it, A commits theft.
g) A finds a ring lying on the high road, not in the possession of any person. A, by taking it, commits no theft, though
he may commit criminal misappropriation of property.
h) A sees a ring belonging to Z lying on a table in Z’s house. Not venturing to misappropriate the ring immediately
for fear of search and detection, 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 ring, commits theft.
i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A, not owing to the jeweller any debt
for which the jeweller might lawfully detain the watch as a security, enters the shop openly, takes his watch by
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Punishment: - For theft, the punishment is up to 3 years or a fine or both.
III] Ingredients:-
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1)
Dishonest Intention:-
The intention is the gist of the offence. Merely taking will not amount to the offence
of theft unless the intention with which it is taken is ‘dishonest’. S.24 of the Code defines
‘dishonesty’ as doing anything with the intention of causing Wrongful Gain to one person
or wrongful loss to another person. S. 23 of the Code defines ‘Wrongful Gain’ is the gain
by unlawful means of the property to which the person gaining is not legally entitled.
‘Wrongful Loss’ is the loss by unlawful means of property to which the person losing it is
legally entitled. Both ‘Wrongful Gain’ and ‘wrongful loss’ need not be caused at a time;
either of these two is sufficient to constitute an offence of theft. If there is no intention of
taking ‘dishonesty’, there is no theft. A bonafide act does not amount to theft. (See
Illustration P)
Even one can steal his own property if he takes it dishonestly from another (See
Illustration (j). A person will also act dishonestly even though he temporarily dispossesses
another of his property, intending to return it later. (See Illustrations (a) and (l)).
2) Movable Property:-
The subject of the theft is movable property, i.e., corporeal property of every
description except the land and things attached to the earth or permanently fixed to
force out of Z’s hand, and carries it away. Here A, though he may have committed criminal trespass and assault,
has not committed hat, in as much as what he did was not done dishonestly.
j) If A owes money to Z for repairing the watch, and if Z retains the of Z’s possession, with the intention of depriving
Z of the property as a security for his debt, he commits theft, in as much as he takes it dishonestly.
k) Again, if A, having pawned his watch to Z, takes it out Z’s possession, without Z’s consent, not having paid what
he borrowed on the watch, he commits theft, though the watch is his own property, in as much as he takes it
dishonestly.
l) A takes an article belonging to Z out of Z’s possession, without Z’s consent, with the intention of keeping it until
he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has, therefore committed
theft.
m) 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 merely of reading it, and with the intention of returning it. Here, it is probable that A
may have conceived that he has Z’s implied consent to use Z’s book. If this was A’s impression, A has not
committed theft.
n) A asks charity from Z’s wife. She gives 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 authorized to give away alms. If this was A’s impression, A
has not committed theft.
o) A is the paramour of Z’s wife. She gives a valuable property, which A knows to belong to her husband Z and to
be such property as she has no authority from Z to give. If A takes the property dishonestly, he commits theft.
p) A, in good faith, believing property belonging to Z to be A’s own property, takes that property out of Z’s possession.
Here, as A does not take dishonestly, he does not commit theft.
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anything which is attached to the earth or permanently fixed to anything which is attached
to the earth (Explanation I).
Things attached to the earth may become movable property as soon as they are severed
from the earth, and this act of severance itself constitutes theft (Illustration (a))
‘Electricity’ is not ‘movable property’. However, by legal fiction under S.39 of the
Indian Electricity Act, 1910, it is treated as the subject matter of theft.
3)
Out of the Possession of any Person:-
Theft is an offence against ‘possession’ and not against ‘title’. Therefore, to constitute
an offence of theft, removing the property out of the possession of somebody without his
consent is necessary (Illustration (f))
Thus, there can be no theft of property that belongs to anyone.
Even though the person from whose possession the property is taken may or may not
be its owner, he may be in possession of it, and he may not be its owner; it does not matter
whether his possession is rightful or wrongful [See Illustration (j) and (k)]
4) Without the Consent of that Person:-
The stolen property must be removed without the express or implied consent of the
person in possession. It is not necessary that the person giving consent must be the owner;
he may have physical control over it under an express or implied authority of the owner
[See Illustration (m) and (n)]
5) Moves that Property:-
Dishonestly moving the property out of the person's possession without that person’s
consent constitutes theft. ‘Dishonest Moving’ is sufficient to constitute theft. It is not
necessary that the thing moved should be carried away or carried off [See Explanations 3
and 4 and Illustrations (b) and (c)]
Moreover, taking may not be of a permanent nature; in other words, temporarily
dispossessing another from property constitutes the offence of theft.
IV] Aggravated forms of theft (Ss.380 to 382):-
Following are the aggravated forms of theft
(i.e., to which higher punishment is provided)
1) Theft in dwelling house etc. Punishment- Imprisonment of up to 7 years and a fine
(S.380).
2) Theft by clerk or servant of property in possession of master. Punishment-
Imprisonment up to 7 years and fine (S.381).
3) Theft after preparation is made for causing death, hurt, or restraint in order to
commit the theft (S.382).
2)
EXTORTION (S.383 to 389):-
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SYNOPSIS
I] Definition (S.383)
II] Ingredients of Extortion
1) Initially putting a person in fear of injury
2) Dishonest inducement to deliver property etc.
III] Aggravated forms of extortion (Ss.386 to 389)
IV] Difference between ‘theft’ and ‘extortion’
1) As to property
2) As to consent
3) As to inducement / delivery of property
4) As to force
I. Definition (S.383):-
i) Whoever,
ii)
Intentionally,
iii) Puts any person in fear of any injury to the person, or to
(the person of) any other, and
iv) Thereby, dishonestly induces the person so put in fear.
v) To deliver to any person any property or valuable security or anything
signed or sealed which may be converted into a valuable security.
-Commits Extortion.
ILLUSTRATIONS
(a) 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.
(b) 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 certain moneys to A. Z
signs and delivers the note. A has committed extortion.
Punishment: - Imprisonment up to 3 years or fine or both (S.384).
Even putting a person in fear of injury in order to commit extortion is also punishable
by imprisonment up to two years or a fine or both (S.385).
II] Ingredients of Extortion:-
1) Intentionally Putting a Person in Fear of Injury: -
Intentionally putting a person in fear of injury to himself or another is the first
requirement of the offence of extortion. S.44 of the Code defines ‘injury’ as “any harm
whatever illegally caused to any person in body, reputation, or property.”
Thus, the injury that the person may be put in fear of is not necessarily a physical
injury, but injury to the character may also be an injury.
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2) Dishonest Inducement to Deliver Property etc.: -
The second requirement of the offence of extortion is that the offence should have been
committed with dishonest intention. Thus, the offender must dishonestly induce the person
put in fear to deliver -
i) Any property
ii) Valuable security, or
iii) Anything signed or sealed which may be converted into a valuable security
III] Aggravated Forms of Extortion (Ss.386 to 389):-
1)
2)
3)
4)
Extortion by putting a person in fear of death or of grievous hurt (S.386).
Punishment- Imprisonment up to 10 years and a fine.
Putting a person in fear of death or of grievous hurt in order to attempt to
commit extortion (S.387). Punishment- Imprisonment up to 7 years and fine.
Extortion by threat of accusation of an offence punishable with death or
imprisonment for life (S.388)
Putting a person in fear of accusation of offence in order to attempt to
commit extortion (S.389).
IV] Difference between ‘Theft’ and ‘Extortion’:-
The offences of ‘theft’ and ‘extortion’ have many common features. Both are
offences against property. Both require ‘dishonest intention’ to constitute an offence.
However, there are the following differences, viz-
1)
2)
3)
4)
As to Property:-
Extortion can be committed with reference to any kind of property, movable or
immovable, whereas theft can be committed in respect of movable property only.
As to Consent:-
In extortion, the victim's consent is obtained wrongfully, whereas in theft, the
property is moved or taken without the owner’s consent.
As to Inducement / Delivery of Property:-
In theft, the property is taken without the owner’s consent, whereas, in extortion,
the person intimidated is induced to deliver the property.
As to Force:-
In theft, there exists no element of force, whereas in extortion, there always exists
an element of force.
3) ROBBERY (Ss.390 to 394 and 401):-
I] Definition
1)
2)
Theft is Robbery
Extortion is Robbery
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II] Aggravated forms of Robbery
I]
Definition:-
S.390 defines ‘Robbery’ as-
-In all ‘robbery’, there is either theft or extortion.
1) Theft is Robbery:-
i) In order to the committing of the theft, or
ii) In committing the theft, or
iii) In carrying away, or
iv) In attempting to carry away property obtained by theft
-the offender for that end voluntarily causes (or attempts to cause) to any person
i) Death, or
ii) Hurt, or
iii) Wrongful restraint, or
iv) Fear of instant death, hurt or wrongful restraint
Extortion is Robbery:-
2)
If the offender, at the time of committing extortion-
i) Is in the presence of the person put in fear and
ii) Commits the extortion by putting that person in fear
of instant death, instant hurt, or instant wrongful
restraint to that person or to some other person, and
iii) By so putting in fear induces the person to put in
fear then and there to deliver up the thing extorted.
Explanation: -
The offender is said to be present if he is sufficiently near to put the other person in
fear of instant death, of instant hurt or of instant wrongful restraint.
ILLUSTRATION
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 commit 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.
Robbery is an Aggravated form of Theft or of Extortion:-
Thus, we may put the definition of robbery in equation form as
ROBBERY =
Theft, violence (or fear of instant violence), or
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Extortion + Offender Present + Fear of instant violence +
immediate delivery.
Punishment: - Imprisonment of up to 10 years and fine (S. 392)
Aggravated forms of Robbery: -
II]
1) If robbery is committed on highways between sunset and sunrise (S.392).
2) If the hurt is caused voluntarily in committing robbery (S.394).
3) Belonging to the gang of persons associated with the purpose of habitually
committing theft or robbery (S.401).
4)
DACOITY:-
SYNOPSIS
I]
Definition (S.391)
II] Dacoity with Murder (S.396)
III] Aggravated forms of ‘Dacoity’
IV] Allied Offences
V]
Distinction between ‘Robbery’ and ‘Dacoity’
Dacoity is an aggravated form of robbery, whereas; robbery is an aggravated form
of either theft or extortion.
I]
Definition (S.391):-
When five or more persons conjointly -
a)
b)
Commit or attempt to commit robbery, or
Are present and aid such commission or attempt.
-every one of them is said to commit ‘Dacoity.’
Punishment: - For Dacoity, the punishment is imprisonment for life or
imprisonment up to 10 years and a fine (S.395).
Attempting to commit ‘Dacoity’ is as much punishable as committing Dacoity itself.
Dacoity with Murder (S.396):-
II]
If any one of the dacoits commits murder while committing dacoity, every one of
them is punishable with death, imprisonment for life or rigorous imprisonment for ten
years.
This section incorporates the principle of ‘constructive criminality.’
III]
IV]
Aggravated forms of ‘Dacoity’:-
Following are the aggravated forms of dacoity viz-.
1)
2)
Robbery or Dacoity, with an attempt to cause death or grievous hurt (S.397).
Attempt to commit robbery or Dacoity armed with deadly weapons (S.398)
Allied Offences:-
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1)
Making preparation to commit Dacoity (S. 399):-
The general rule is that the preparation to do an offence is not punishable except in
cases of-
i)
Preparation
to
wage
war
against
the
State
(S.122),
preparation to commit depredation on territories of power at peace with
the Gvt. Of India (S.126); and
ii)
Preparation to commit Dacoity (S.399)
Thus, preparation to commit Dacoity is punishable by rigorous imprisonment
up to ten years and fine.
2)
3)
Belonging to a Gang of Dacoits (S.400):-
Belonging to a gang of dacoits is punishable with life imprisonment or rigorous
imprisonment of up to ten years and a fine.
Assembling for the Purpose of Committing Dacoity (S.402):-
Assembling for the purpose of committing Dacoity is punishable with rigorous
imprisonment of up to seven years and a fine.
V]
Distinction between ‘Robbery’ and ‘Dacoity’:-
The distinction between ‘Robbery’ and ‘Dacoity’ lies in the number of persons
involved in the offence. Robbery is Dacoity if committed by five or more persons.
5)
CRIMINAL MISAPPROPRIATION OF PROPERTY (S.403 and 404):-
SYNOPSIS
I]
Dishonest misrepresentation of property (S.403)
Dishonest misappropriation of property possessed by deceased person at the time
of his death (S.404): -
II]
III]
Difference between theft and criminal misappropriate
1) In theft, the object of the offender is to
take property from other’s possession.
2) Moving
3) Consent
4) Previous/subsequent ‘dishonest intention’
The offence of ‘criminal misappropriation’ of the property consists of dishonest
appropriation, or conversion, of another’s property to capitalise it for one’s own use. It may
be that the possession of property might have been obtained or come innocently. However,
a subsequent change of intention (dishonest) of possession makes the possession wrongful
or fraudulent. In other words, initial possession may be valid, but due to a change in
intention, it becomes invalid, i.e., ‘criminal misappropriation’.
I]
Dishonest Misappropriation of Property (S.403):-
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Whoever dishonestly misappropriates or converts to his own use any movable
property shall be imprisoned for up to two years, with a fine, or both.
Illustrations
(a)
A takes property belonging to Z out of Z’s possession in good faith, believing, at
the time when he takes it, that the property belongs to himself. A is not guilty of
theft, but if A, after discovering his mistake, dishonestly appropriates the property
to his own use, he is guilty of an offence under this section.
Explanation 1- A ‘dishonest misappropriation’ for a (short) term only is a
misappropriation within the meaning of this section.
Illustration
A finds a Government promissory note belonging to Z, bearing a blank endorsement.
A, knowing that the note belongs to Z, pledges it to a banker as security for the loan,
intending to restore it to Z at a future time. A has committed an offence under this section.
Explanation 2 - A person who finds a property not in possession of any other person
and takes such property for the purpose of protecting it or of restoring it to the owner does
not take or misappropriate it dishonestly and is not guilty of an offence but he is guilty of
the offence above defined, if he appropriates it to his own use, when he knows or has the
means of discovering the owner, or before he has used reasonable means to discover and
give notice to the owner and has kept the property for a reasonable time to enable the owner
to claim it.
What are reasonable means? or what is a reasonable time in such a case? It is a
question of fact.
It is not necessary that the finder should know who is the owner of the property or
that any particular person is the owner of it; it is sufficient if, at the time of appropriating
it, he does not believe it to be his own property, or in good faith believes that real owner
cannot be found.
Illustration
(a)
(b)
A finds a rupee on the high road; not knowing to whom the rupee belongs, A picks
up the rupee. Here, A has not committed the offence defined in this section.
A finds a letter on the road containing a bank note. From the direction and contents
of the letter, he learns to whom the note belongs. He appropriates the note. He is
guilty of an offence under this section.
It appears from the above definition and illustrations that there are the following
two ingredients of the offence: -
1)
2)
Dishonest misappropriation or conversion of property for a person’s own use
Property must be movable.
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II] Dishonest Misappropriation of Property Possessed by Deceased Person at the
Time of his Death (S.404): -
Whoever dishonestly misappropriates or converts to his own use property, knowing
that such property was in possession of a deceased person at the time of that person’s
decease and has not since been in possession of any person legally entitled to such
possession, shall be punished with imprisonment up to three years and shall also be liable
to fine. If he employed the offender at the time of such person's decease as a clerk or
servant, the imprisonment may extend to seven years.
Illustration
Z dies in possession of furniture and money. Before the money comes into the
possession of any person entitled to such possession, his servant A dishonestly
misappropriates it. A has committed the offence defined in this section.
III] Difference between ‘Theft’ and ‘Criminal Misappropriation’:-
Following are the points of distinction between ‘theft’ and ‘criminal
misappropriation’.
1.
In theft, the object of the offender is to take property from another’s possession,
whereas, in ‘criminal misappropriation’, the offender already possesses the
property.
2.
Moving: -
Moving the property is an important ingredient of theft. The initial moving
of property may be lawful, but the subsequent ‘dishonest’ intention to
misappropriate or convert the property to his own use is the offence.
Consent: -
3.
In theft, the moving of property takes place without the consent of the owner.
However, in ‘criminal misappropriation’, the possession of the property may
be with the express or implied consent of the owner.
Previous/subsequent ‘dishonest intention’:-
4.
In theft, the dishonest intention precedes the act of taking.
Whereas, in ‘criminal misappropriation of property,’ it is the subsequent
change in intention to misappropriate or convert the property for one’s own use that
constitutes the offence.
*****
6) CRIMINAL BREACH OF TRUST (Ss.405 to 409):-
SYNOPSIS
I] Definition: -
Entrustment of property: -
“Law Master’s Publication”
II] Aggravated forms of the offence: -
III] Difference between “Criminal Misappropriation of Property” and “Criminal
Breach of trust”: -
‘Offences Against Property’
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1) Receiving Property
2) Contractual relationship
3) Conversion
I]
Definition: -
Generally, any deliberate or negligent failure to implement the duties incumbent by
law on a trustee or a person in the fiduciary position is a breach of trust’.
Whoever, being in any manner entrusted with property or dominance over property,
a) Dishonestly / misappropriates, or
b) Converts to his own use, or
c) Uses or disposes of that property.
In violation of-
a) any direction of law prescribing the mode in
such trust is to be discharged or
which
has
b)
legal
contract,
express
or
implied,
which
he
made touching the discharge of such trust, or
Willfully, suffers any other person so to do, commits ‘Criminal Breach of Trust.’
Punishment is imprisonment for three years, or with a fine or both (S.406)
Explanations 1 and 2: -
Explanations one and two to this section provide that an employer deducting an
employee’s contribution from his wages for credit to a Provident Fund or to a Family
Pension Fund established by law or to the Employees State Insurance Fund Established
in payment of such contribution to the said fund in violation of law, he shall be deemed to
have dishonestly used that amount in violation of a direction of law.
Illustration
(a)
A, being executor to the will of a deceased person, dishonestly disobeys the law,
which directs him to divide the effects (proceeds) according to the will and
appropriates them for his own use. A has committed a criminal breach of trust.
A is a warehouse keeper. Z, going on a journey, entrusts his furniture to A under a
contract that it shall be returned upon payment of a stipulated sum for the warehouse
(b)
2 Employees State Insurance Act 1948
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Entrustment of Property:-
To constitute a criminal breach of trust, there must be an entrustment of property or
any dominion over it. Secondly, it has to be established that in respect of the property so
entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use
or disposal in violation of a direction of law or legal contract by the accused himself or by
somebody else, which he willingly suffered to do. The term ‘entrustment’ implies the
handing over of the possession of a thing for some purpose, which may not imply the
conferring of any proprietary right. Entrustment may be in any manner. Thus, property was
entrusted to the director of the company, collection of land revenue by a Tahsildar handing
over partnership property to a partner, currency notes were taken by police while doing the
search, and a woman’s property (Strtridhan) was in the hands of in-law’s family are all
instances of ‘entrustment’.
II]
Aggravated Forms of the Offence: -
Following are the aggravated (i.e., punishable severely) forms of offences of
‘criminal breach of trust.”
1)
Criminal Breach of trust by carrier, wharfinger, or warehouse keeper (S.407)
2)
Criminal Breach of trust by clerk or servant (S.408).
3)
Criminal Breach of trust by a public servant, banker, merchant, or agent (S.409).
Difference between “Criminal Misappropriation of Property” and “Criminal
III]
Breach of Trust”: -
1) Receiving Property: -
In ‘misappropriation,’ property comes into the possession of the accused legally or
otherwise, and he afterwards misappropriates it.
Meanwhile, in a ‘criminal breach of trust,’ the offender is lawfully entrusted with
the property, and he dishonestly misappropriates it subsequently.
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(c ) A, residing in Calcutta, is an agent for Z, residing at Delhi. There is an express or implied contract between A
and Z, that all sums remitted by Z to A shall be invested by A, according to Z’s direction. Z remits a lakh of rupees
to A, with directions to invest the same in company’ paper. A dishonestly disobeys the directions and employs the
money in his own business. A has committed criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it will be more for Z’s advantage
to hold shares in the Bank of Bengal for Z instead of buying Company’s paper, here, though Z should suffer loss and
should be entitled to bring a civil action against A, on account of that loss yet A not having acted dishonestly, has
not committed criminal breach of trust.
(e) A, a revenue officer, is entrusted with public money and is either directed by law, or bound by a contract, express
or implied, with the Government to pay into a certain treasury all the public money which he holds. A dishonestly
appropriates the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the
money. A has committed criminal breach of trust.
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‘Offences Against Property’
Prof. Santosh D. Bhosale 138
2) Contractual Relationship: -
In ‘criminal breach’ of trust, a contractual relationship exists between the parties,
whereas, in ‘misappropriation’, a contractual relationship does not exist.
3)
Conversion: -
In ‘criminal breach of trust’, there is the conversion of property held in a fiduciary
character, whereas, in ‘misappropriation’, there is the conversion of property coming into
possession of the offender anyhow.
7)
SYNOPSIS
I]
Definition
II]
Aggravated forms of cheating (Ss.416 to 420)
III]
Difference between ‘criminal misperception’, ‘criminal breach of trust’ and
‘cheating’
1) As to Nature
2) As to property
3) As to possession
Definition:-
I]
S. 415 defines cheating as -
Whoever, by deceiving any person-
(a)
Fraudulently or dishonestly induces the person so deceived-
i) To deliver any property to any person or
ii) 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’.
(b)
(c)
Explanation: -
A dishonest concealment of facts is a deception within the meaning of this section.
Punishment: -
4
फसवनूक [धोखाधड़]
5 In M/s Astic Life Sciences Ltd. V/s State of Maharashtra (2008 All MR 1054).
Facts :- Accused was alleged to have cheated by breach of contract.
Held :- Mere breach of contract does not amount to an offence of cheating unless fraudulent or dishonest
intention is shown to exist from the beginning of the transaction.
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‘Offences Against Property’
Prof. Santosh D. Bhosale 139
Illustration
(a)
(b)
II]
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.
A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief
that a certain celebrated manufacture made this article, and thus dishonestly induces
Aggravated Forms of Cheating (Ss.416 to 420)
1) Cheating with knowledge that wrongful loss thereby be caused to a person
whose interest the offender is bound to protect (S.418).
2) Cheating and dishonestly inducing delivery of property (S.420).
3) Cheating by personation (S.416)
S. 416 defines cheating by personation as ‘one cheats by -
i) Pretending to be some other person or by
ii) Knowingly substituting one person for another, or
iii) Representing that he or any other person is a person
other than he or such other person really is -
- cheats by personation’.
Punishment: - For ‘cheating by personation’, the punishment is imprisonment of
up to 3 years, a fine, or both. (S.419).
Other sections in the Code regarding the personation of-
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(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into a belief that the article corresponds
with the sample, and thereby dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by pretending payment for an article (draws) a bill on a house with which A keeps no money and by which A
expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the
article, intending not to pay for it. A cheats.
(e) A, by pleading as diamond’s 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 to 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 sends 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 deceived 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 of mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives
the purchase or mortgage money from Z. A cheats.
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‘Offences Against Property’
Prof. Santosh D. Bhosale 140
1) A soldier (S.140)
2) A public servant (S.170)
3) Wearing garb or carrying the token used
by a public servant (S.171)
4) Personating at an election (S.171 D).
5) Personation for the purposes of an act of
proceeding in a suit or prosecution (S.205)
6) A juror or assessor (S.229).
III] Difference between ‘Theft’ ‘Criminal Misappropriation’, and ‘Cheating’:-
There are the following differences between these three:
1. As to Nature:-
In theft, the intention is to take a movable property dishonestly out of the
possession of another person.
In ‘misappropriation’ the intention is to dishonestly misappropriate or convert to
his own use of any movable property.
In the case of ‘cheating’, the intention is to fraudulently or dishonestly induce the
deceived person to deliver any property.
2. As to Property
In ‘theft’ and ‘criminal misrepresentation,’ the property involved is movable,
whereas ‘cheating’ may take place in respect of movable as well as immovable
property.
3. As to Possession
In theft, the property is taken out of the possession of another.
In ‘misappropriation’, the offender already possesses the property.
In ‘cheating’, the victim is induced to deliver the property to the offender.
8)
MISCHIEF (S.425 to 440):-
SYNOPSIS
I]
Definition
II] Aggravated forms of mischief Aggravated forms (Ss.427-440)
I]
Definition: -
A person commits mischief if he -
i)
with
the
intention
to
cause
or
knowing
that
he
is
likely
to cause wrongful loss or damage to-
a) the public, or
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‘Offences Against Property’
Prof. Santosh D. Bhosale 141
b) any person
ii)
Causes: -
a) the destruction of any property, or
b) any such change in any property or the situation thereof, or destroys or
diminishes its utility or affects it injuriously (S.425).
Punishment: -
For mischief, the punishment is up to 3 months or a fine or both (S.426).
Explanations 1 and 2 to the section provided that the property may belong to any
person, even to the offender or to the offender himself and others jointly, and the offender
need not intend loss or damage to the owner.
Illustration
(a)
(b)
II]
(1)
(2)
(3)
A voluntarily burns a valuable security belonging to Z, intending to cause wrongful
loss to Z. A has committed mischief.
A introduces water into an ice-house belonging to Z and thus causes the ice to melt,
Aggravated Forms of Mischief (Ss.427 to 440)
The following are aggravated forms of mischief: -
Committing mischief and thereby causing damage amounting to fifty rupees or more
(S.427).
Mischief by killing, poisoning, rendering useless or maiming any animal of the
value of 10 rupees or more (S.428).
Mischief by killing, poisoning, maiming or rendering useless an elephant, camel,
horse, mule, buffalo, bull, cow, ox or any animal of the value of 50 rupees or
upwards (S.429).
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(c)
A voluntarily throws into a river a ring belonging to Z, with the intention of thereby causing wrongful loss
to Z. A has committed mischief.
(d)
A, knowing that his effects are about to be taken in execution in order to satisfy a debt from him to Z,
destroys those effects, with the intention of thereby preventing Z from obtaining satisfaction of the debt,
and thus causes damage to Z. A has committed mischief.
(e)
(f)
A, having insured a ship voluntarily causes the same to be cast away, with the intention of causing damage
to the underwriters; A has committed mischief.
A causes a ship to be cast away, intending thereby to cause damage to Z who has lent money on bottomry
on the ship. A has committed mischief.
(g)
(h)
A, having joint property with Z in a horse, shoots the horse, intending thereby to cause wrongful loss to Z.
A has committed mischief.
A causes cattle to enter upon the field belonging to Z, intending to cause and knowing that he is likely to
cause damage to Z’s crop. A has committed mischief.
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‘Offences Against Property’
Prof. Santosh D. Bhosale 142
(4)
Mischief by injury to works of irrigation or wrongfully diminishing supply of water
for agricultural purposes or food or drink, or cleanliness, etc. (S.430).
Mischief by injury to a public road, bridge, river or channel so as to render it
impassable or less safe for travelling or conveying property (S.431).
Mischief by causing inundation or obstruction to public drainage (S.432).
Mischief by destroying, moving, or rendering less useful a lighthouse or sea mark
or by exhibiting a false light (S.433).
(5)
(6)
(7)
(8)
(9)
Mischief by destroying, moving, or rendering less useful any landmark fixed by the
authority of a public servant (S.434).
Mischief by fire or explosive substances, with intent to cause damage to the amount
of Rs.100 or upwards or where the property is agricultural produce, of the value of
ten rupees or upwards (S.435).
(10) Mischief by fire or explosive substance, with intent to destroy any building used as
a place of worship, human dwelling, or as a place for the custody of property
(S.436).
(11) Mischief with intent to destroy or make unsafe, decked vessel or a vessel of 20 tons
or more (S.437).
(12) Mischief or attempt to commit mischief, as described above, with fire or any
explosive substance (S.438).
(13) Intentionally running a vessel aground or ashore, with intent to commit theft or
misappropriation of property (S.439).
(14) Mischief committed after preparation made for causing any person death, hurt or
wrongful restraint or fear of death, hurt, or wrongful restraint (S.440)
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