« 이전계속 »
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 wilfully suffers any other person so to do, commits 'criminal breach of trust 3.'
Illustrations. (a) A being executor to the will of a deceased person, dishonestly disobeys the law which directs him to divide the effects according to the will, and appropriates them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. 2, going on a journey, entrusts his furniture to A, under a contract that it shall be returned on payment of a stipulated sum for warehouse-room. A dishonestly sells the goods. A has committed criminal breach of trust.
(c) A, residing in Calcutta, is agent for 2 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 lákh of rupees to A, with directions to A to invest the same in Company's 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, disobeys Z's directions and buys shares in the Bank of Bengal for Z, instead of buying Company's paper, here, though 2 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 2 with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust 5.
the High Court held that he had not committed a criminal breach of trust, 3 Mad. H. C. Rulings, vi. But where the pledgee of property repledges it, this may amount to a criminal breach of trust, 6 Mad. H. C., App. xxviii.
i See the Trusts Act, IT of 1882, chap. iii. and sec. 95.
* i.e. any agreement enforceable by law.
3 The words of this section are large enough to include the case of a partner, if it be proved that he was in fact entrusted with the partner ship property and has dishonestly misappropriated it or converted it to his own use, 13 Ben. 311, per Couch C.J.
· Sec. 52.
5 A, one of B's servants, being sent by his fellow-servants to receive their pay from B, dishonestly misappropriates the money. A has committed criminal breach of trust; Mayne, P. C. 323, citing R. v. Barnes, L. R., 1 C. C. 45. Z intrusts thirty tolas of silver to A for the purpose of making them into bangles. A substitutes copper for two of the tolas which he dishonestly misappropriates. A has committed criminal breach of trust, 4 Bom. H.C., Cr. Ca. 16.
406. Whoever commits criminal breach of trust shall be Punish
ment for punished with imprisonment of either description for a term criminal which
may extend to three years, or with fine, or with both ?. breach of 407. Whoever being entrusted with property as a carrier, Criminal wharfinger, or warehouse-keeper, commits criminal breach of breach of
trust by trust in respect of such property, shall be punished with carrier, imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine?.
408. Whoever, being a clerk or servant or employed as a Criminal clerk or servant, and being in any manner 3 entrusted in such
trust by capacity with property, or with any dominion over property, clerk or commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine 4. 409. Whoever, being in any manner entrusted with Criminal
breach of property, or with any dominion over property, in his capacity
trust by of a public servant 5 or in the way of his business as a banker, public sermerchant, factor, broker, attorney or agent, commits criminal banker, , breach of trust in respect of that property, shall be punished merchant
or agent. with transportation for life, or with imprisonment of either
A mortgages Sultánpur to Z in the English form, and is allowed by Z to remain in possession. A wilfully makes default in payment of the Government revenue due in respect of Sultánpur. Thereupon the collector sells it, and at the sale A buys it benámi. Á has committed criminal breach of trust, 5 Suth. Civ. R. 230.
* If the evidence in support of the charge leaves it doubtful whether the offence which has been committed is theft or criminal breach of trust, the Court may nevertheless proceed to judgment. See sec. 72.
? As to carriers by water who run their vessels ashore, intending to misappropriate the cargo, see sec. 439. If the breach of trust be proved, but not the entrusting as a carrier, the accused may be convicted under sec. 406 (Cr. P. C. sec. 238).
3 This shows that the legislature wished a liberal construction to be put upon the section in cases where property is, in point of fact, received by the servant as a servant; per Scotland C.J., cited Mayne, P. C. 342.
4 10 Suth. Cr. 28.
Where a village shroff whose duty it was to assist in collecting the public revenue received grain from ryots and gave receipts as if for money received by virtue of a private arrangement, it was held that he could not be convicted under this section, as he was not authorised to receive the public revenue in kind; and the person who delivered the grain did not thereby discharge himself
description for a term which may extend to ten years, and shall also be liable to fine.
Receiving Stolen Property. Stolen 410. Property the possession whereof has been transferred property by theft?, or by extortion?, or by robbery 3, and property which defined
has been criminally misappropriated 4 or in respect of which the criminal breach of trust has been committed, is designated as
stolen property,' whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without British India 5. But if such property subsequently comes into the possession of a person legally entitled to the
possession thereof, it then ceases to be stolen property. Dis. 411. Whoever dishonestly receives or retains any stolen honestly receiving property ", knowing or having reason to believe the same to stolen be stolen property, shall be punished with imprisonment of property. either description for a term which may extend to three years,
or with fine, or with both 8. Dig- 412. Whoever dishonestly receives or retains any
from liability for the revenue, 4 Mad. Money obtained on a forged money.
offences under sec. 411 may be tried summarily, Cr. P.C. sec. 260. А charge under sec. 411 should state
that the articles found in the posses+ i.e. dishonestly misappropriated sion of the accused were the property or converted to the offender's own of A B, the owner thereof, i Bom. H. use, sec. 403.
C. 95. As to the evidence sufficient 5 Sec. 51. The words. whether . . for a conviction under this section, see India,' inserted in the Code by Act 2 N. W. P. 187: 11 Cal. 160. For VIII of 1882, were suggested by the the offence of dishonest receipt there case reported in 5 Bom. 338, where
must be guilty knowledge at the time the Court held that bills of exchange of the receipt. The offence of dishonest stolen in Mauritius (in which island retention may be complete without this Code is not in force) were not any guilty knowledge at the time
stolen property' so as to render the of receipt, 4 Mad. H. C. Rulings, xlii. person receiving them at Bombay 9 A man cannot be said to receive liable under sec. 411.
or retain' (within the meaning of
this section) property of which he .e. property which had been, and, has already got possession by comat the date of the receipt, continued mitting a criminal breach of trust, a to be, stolen; Mayne, P. C. 344.
N. W. P. 313
i Sec. 378. 2 Sec. 383. 3 Sec. 390.
6 Sec, 24. 7 i.e.
property, the possession whereof he knows or has reason to receiving believe to have been transferred by the commission of dacoity, stolen in or dishonestly receives from a person whom he knows or has commission
of dacoity. 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 transportation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine 2.
413. Whoever habitually receives or deals in property Habitually which he knows or has reason to believe to be stolen property,
dealing in shall be punished with transportation for life, or with impri- perty. sonment of either description for a term which may extend to ten years, and shall also be liable to fine 3.
414. Whoever voluntarily 4 assists in concealing or disposing Assisting of or making away with property which he knows or has in conceal
ment of reason to believe 5 to be stolen property, shall be punished stolen pro
perty. with imprisonment of either description for a term which may extend to three years, or with fine, or with both 6.
Of Cheating. 415. Whoever, by deceiving ? any person, fraudulently8 or Cheating
defined. dishonestly 1 induces the person so deceived to deliver any property o to any person, or to consent that
any person shall
sidered as two distinct offences within or with whipping, Act VI of the meaning of the Cr. P. C., sec. 1864, sec. 2. A commuted sentence 35; see 4 Mad. H. C. Rulings, xiv. of transportation under this section Where the value of the property and sec. 59 cannot exceed ten years, does not exceed Rs. 50, offences under 5 Suth. Cr. 16, 17. The prosecution sec. 414 may be tried summarily, Cr. must prove that the accused knew, P. C., sec. 260. or had reason to believe, that dacoity ? Where 2 knowingly bought had been committed, or that the watered milk from A, with a view to persons from whom he acquired the prove a case against A and thus stop property were dacoits, 7 Suth. Cr. the practice of selling watered milk, 109.
A was held not to be guilty of cheatAnd see Act VI of 1864 (the ing, 18 Suth. Cr. 61. Whipping Act), sec. 4.
• It seems that only moveable * This is very much stronger than property is intended, M. & M. 382. 'suspect,' and involves the necessity But why? The Madras High Court of showing that the circumstances were has held that to obtain land free of tax such that a reasonable man must have from a Revenue-officer by falsely refelt convinced in his mind that the presenting that it is waste is cheatproperty with which he was dealing ing, 6 Mad. H. C., Appx. xii; and see must be stolen property, 6 Bom. 403. illustration (i), where 'property' is
. The offences specified in this used as equivalent to an estate.' section and sec. 411 cannot be con
i Secs. 24, 25;
8 Sec. 25.
* Sec. 39.
10 Sec. 90.
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 2, and thus dishonestly induces 2 to let him have on credit goods for which he does not mean to pay. A cheats.
(6) 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 2 to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Zinto 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 2, 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 2, 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 2 to lend him money, A not intending to repay it. A cheats 4.
(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 2 to advance money upon the faith of such delivery. A cheats; but if A, at the
1 See note 9, p. 251.
9 Bom. H. C. 448. A passenger travelling by railway in a carriage of a class higher than that for which he has paid fare does not cheat,' though he is guilty of an offence under the Railway Act IV of 1879, sec. 32, cl. (b).
and pay for the reel. A cheats (Mayne, P. C. 388.)
3 A, by marking a reel of cottonthread as if it contained 300 yards, when in fact it only contained 250 yards, dishonestly induces 2 to buy
Hence a false statement as to a future fact may constitute a deception within the meaning of sec. 415. The obvious inconveniences resulting froin such a doctrine can only be avoided by cleaving to the rule that mere breach of contract is not even prind facie evidence of an original fraudalent intention, Mayne, P. C. 350; 9 Bom. H. C. 448.