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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 1, or of any legal contract 2, 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, dis honestly 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. Z, 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 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 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 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.

(ƒ) A, a carrier, is entrusted by Z with property to be carried by land or by water. A dishonestly misappropriates the property. A has committed criminal breach of trust.

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.

See the Trusts Act, II 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 partnership 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

ment for criminal

trust.

406. Whoever commits criminal breach of trust shall be Punishpunished with imprisonment of either description for a term which may extend to three years, or with fine, or with both1. breach of 407. Whoever being entrusted with property as a carrier, Criminal wharfinger, or warehouse-keeper, commits criminal breach of breach of 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".

trust by

&c.

breach of trust by

servant.

408. Whoever, being a clerk or servant or employed as a Criminal clerk or servant, and being in any manner3 entrusted in such 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 1.

breach of

vant,

409. Whoever, being in any manner entrusted with Criminal property, or with any dominion over property, in his capacity trust by of a public servant 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 with transportation for life, or with imprisonment of either

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 4 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.

A mortgages Sultanpur 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 Sultanpur. Thereupon the collector sells it, and at the sale A buys it benami. A 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.

2 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).

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.

or agent.

5 See sec. 21, supra, and 2 N. W. P. 298. 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

Stolen

description for a term which may extend to ten years, and shall also be liable to fine.

Receiving Stolen Property.

410. Property the possession whereof has been transferred property by theft1, or by extortion2, or by robbery, and property which

defined.

Dishonestly

4

has been criminally misappropriated 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. 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.

6

411. Whoever dishonestly receives or retains any stolen receiving property 7, knowing or having reason to believe the same to stolen be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both 8.

property.

Dishonestly

412. Whoever dishonestly receives or retains any stolen

from liability for the revenue, 4 Mad.
H. C. Rulings, xxxiii. So where the
public servant improperly delegates
the custody of Government property,
taking security to save himself from
loss, the delegate, though himself a
public servant, does not seem punish-
able under this section, where he dis-
honestly converted the property to
his own use, 8 Suth. Cr. 1.

1 Sec. 378.

2 Sec. 383.

3 Sec. 390.

i. e. dishonestly misappropriated or converted to the offender's own use, sec. 403.

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5 Sec. 51. The words whether ... India,' inserted in the Code by Act VIII of 1882, were suggested by the case reported in 5 Bom. 338, where the Court held that bills of exchange stolen in Mauritius (in which island this Code is not in force) were not 'stolen property' so as to render the person receiving them at Bombay liable under sec. 411.

• Sec. 24.

7i. e. property which had been, and, at the date of the receipt, continued to be, stolen; Mayne, P. C. 344.

Money obtained on a forged moneyorder is not 'stolen property,' 24 Suth. Cr. 33, 35. Nor is a bull set at large by a Hindú on the occasion of a funeral ceremony, 8 All. 51; for it is then in no one's possession.

8

or with whipping, Act VI of 1864, sec. 2. Where the value of the property does not exceed Rs. 50, offences under sec. 411 may be tried summarily, Cr. P. C. sec. 260. A charge under sec. 411 should state that the articles found in the possession of the accused were the property of AB, the owner thereof, 1 Bom. H. C. 95. As to the evidence sufficient for a conviction under this section, see 2 N. W. P. 187: 11 Cal. 160. For the offence of dishonest receipt there must be guilty knowledge at the time of the receipt. The offence of dishonest retention may be complete without any guilty knowledge at the time of receipt, 4 Mad. H. C. Rulings, xlii.

9 A man cannot be said to 'receive or retain' (within the meaning of this section) property of which he has already got possession by committing a criminal breach of trust, 2 N. W. P. 313.

property

of dacoity.

property, the possession whereof he knows or has reason to receiving believe to have been transferred by the commission of dacoity, stolen in or dishonestly1 receives from a person whom he knows or has commission 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, stolen prodealing 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.

ment of

414. Whoever voluntarily assists in concealing or disposing Assisting of or making away with property which he knows or has in concealreason to believe to be stolen property, shall be punished stolen prowith imprisonment of either description for a term which may extend to three years, or with fine, or with both ".

5

Of Cheating.

8

perty.

defined.

415. Whoever, by deceiving any person, fraudulently or Cheating dishonestly1 induces the person so deceived to deliver any pro

9

perty to any person, or to consent 10 that any person shall

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sidered as two distinct offences within
the meaning of the Cr. P. C., sec.
35; see 4 Mad. H. C. Rulings, xiv.
Where the value of the property
does not exceed Rs. 50, offences under
sec. 414 may be tried summarily, Cr.
P. C., sec. 260.

7 Where Z knowingly bought
watered milk from 4, with a view to
prove a case against A and thus stop
the practice of selling watered milk,
A was held not to be guilty of cheat-
ing, 18 Suth. Cr. 61.

8 Sec. 25.

It seems that only moveable
property is intended, M. & M. 382.
But why? The Madras High Court
has held that to obtain land free of tax
from a Revenue-officer by falsely re-
presenting that it is waste is cheat-
ing, 6 Mad. H. C., Appx. xii; and see
illustration (i), where 'property' is
used as equivalent to an estate."
10 Sec. 90.

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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 3.

(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 4 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.

(ƒ) 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, 4 not intending to repay it. A

cheats 1.

(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

1 See note 9, p. 251.

2 Bom. H. C. 448. A passenger 9 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).

3 A, by marking a reel of cottonthread as if it contained 300 yards, when in fact it only contained 250 yards, dishonestly induces Z to buy

and pay for the reel. A cheats. (Mayne, P. C. 388.)

Hence a false statement as to a future fact may constitute a deception within the meaning of sec. 415. The obvious inconveniences resulting from such a doctrine can only be avoided by cleaving to the rule that mere breach of contract is not even prima facie evidence of an original fraudulent intention, Mayne, P. C. 350; 9 Bom. H. C. 448.

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