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CRIMINAL BREACH OF TRUST - BY R.POOJA KANMANI

INTRODUCTION 
The concept of criminal breach of trust is similar to the concept of “embezzlement” under the English law. Section 405 of the Indian penal code deals with criminal breach of trust and section 406 provides for the punishment of criminal breach of trust and section 407 provides for the criminal breach of trust committed by carrier, wharfinger or warehouse-keeper, Section 408 provides for the criminal breach of trust committed by clerk or servant and section 409 deals with criminal breach of trust in respect of public servants. The section, in a nutshell reads as, “dishonest misappropriation” or “conversion to own use” of another’s property. Section has a wide amplitude while including entrustment of any kind under the words “in any manner entrusted with”. Criminal breach of trust and criminal misappropriation are often viewed as the same in layman’s view. But criminal breach of trust and criminal misappropriation are two distinct offences, wherein in case of criminal breach of trust the property’s possession or control is entrusted with the accused. 
ESSENTIAL INGREDIENTS
This entrustment of control or possession over the property along with person entrusted with such property using the property and the accused dishonestly using or disposing of that property or willfully suffer any other person so to do constitutes the essential ingredients. There are two distinct part in the concept of criminal breach of trust. Firstly, the responsibility vested with the entrusted person over the property and secondly the misappropriation of the entrusted property. Thus, it can be connoted that the key ingredients are “entrustment” and “dishonest misappropriation” and creation of fiduciary relationship. A mere sale transaction shall not create the fiduciary relationship in the context of section 405. The term ‘entrusted’ in section 405 in addition to governing “with the property” also the governs the words “or with any dominion over the property.” Entrustment means handing over the possession of property for certain purpose with or without conferring of any proprietary right. In order to understand more precisely, it is necessary to delve into the in depth understanding of dishonest misappropriation. The term dishonesty is defined under section 24 of the Indian Penal Code, as causing wrongful gain or wrongful loss to a person. The terms wrongful loss and wrongful gain are also defined under section 23 of the Indian Penal Code. Thus, in order to constitute an offense under the criminal breach of trust, it is crucial to prove that the property was misappropriated for his own use or unauthorized use. The term property includes both movable and immovable property. As reiterated in the case of State of Madhya Pradesh v Pramode Mategaonkar ((1965) 2 CrLJ 562 (MP), entrustment of property need not be expressed, it can be also be implied. The case of Krishan Kumar V Union of India (AIR 1959 SC 1390), states the precise manner of misappropriation need no be proved in every case and the question is “the intention of the accused” and not the “direct proof of misappropriation”. This was also upheld in the case of Jaikrishnadas Manohardas Desai vs State of Bombay (AIR 1960 SC 889). InState of Gujarat vs Jaswantlal Nathalall (AIR 1968 SC 700), 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”. 
CRIMINAL BREACH OF TRUST BY A PUBLIC SERVANT, BANKER, MERCHANT OR AGENT
The essential ingredient of section 409 is that there should be a nexus between the property entrusted and the office held by the public servant, banker, merchant or agent. Criminal breach of trust committed by public servant, banker, merchant or agent carries stringer punishments compared to that of the criminal breach of trust committed by others. Carelessness to observe the rules shall not make one guilty of criminal breach of trust, but rather the malafide intention to misappropriate the property vested with them shall make them guilty (In Re. Lal Raoji, ((1928) 30 Bom. L.R. 624)). In the case of Sardar Singh v State of Haryana ((1977) 1 SCC 463), it was held that it must be proved that the public servant should be of government and he should have misappropriated the property entrusted with him. In the case of Anil Saran v State of Bihar, it was held that a partner misappropriating the properties of the partnership firm for his own purpose, constitutes an offence under section 405 i.e., criminal breach of trust, as the partners have control over the property entrusted with the partnership firm. In the case of Rashmi Kumar vs Mahesh Kumar Bhada (1997) 2 SCC 397), it was held that misappropriation of the stridana property of the wife, by the husband or his family members for their own use, shall make them liable to criminal breach of trust under section 405 of the Indian Penal Code.
CONCLUSION
The provisions of the criminal breach of trust contains the mandated provisions and is self-satisfactory. These provisions are sufficient to cope up with the criminal breach of trust. This is evident by placing a stringent punishment with the public servants, as by placing a stringent punishment tendency to commit criminal breach of trust tends to low and increase the confidence amongst the people on the administrative and executive side of the government. The utmost crucial step that is required, is the effective implementation and the application of law such that the cases shall not go unreported.

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