A person walking on the road found a wallet lying at the edge of the road. He picked up the wallet and kept it in his pocket. Neither any shop, nor any house was there in that particular area and that was a busy road. So, the person decided to keep that wallet with him and he used the contents like the amount and all. So, in this case, when a person found a property without knowledge of its owner, can he use that property? Whether the person has done any wrongful act or not?
In fact, anyone can come across a property belonging to another person. Then, is it fine to use that property or not? Now, coming to another situation where an employer gave some amount to his employee to deposit the same into the bank. But, instead of depositing the same, the employee used that money for his own purpose. Here, is the employee liable or not? If yes, then what of liability can be imposed on him in such a situation?
The Indian legislature has provided provisions or the solutions for such cases in the Indian Penal code, 1860. In the first case, the person will be liable for the offence of Criminal Misappropriation of Property because he hasn’t taken reasonable efforts to discover the true owner of the wallet. And in the same case the employee will be liable for the offence of Criminal Breach of Trust under the IPC for misappropriating the property entrusted to him by his employer. The both offences are different from each other, but both are the Criminal offences against property involving the dishonest intention of the offender.
CRIMINAL MISAPPROPRIATION OF PROPERTY
According to the section 403 of Indian Penal code, 1860 “Whoever misappropriates or converts any movable property to his own use, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both”.
It basically states that if any person misappropriates any movable property belonging to another person for his own purpose with dishonest intention, then that person will be liable under the offence of criminal misappropriation of property.
When a person finds any movable property belonging to another, he will be held guilty only if he appropriates the property to his own use when he knows or has means of discovering the owner or before he has used reasonable means to discover and give notice to owner or used the same before the reasonable time to enable the owner to claim it. What are the reasonable means or what is a reasonable time is a question of fact i.e. depends on the facts and circumstances of the case.
In the above-mentioned case where the person found a wallet on roadside and he appropriated it for his own-purpose, the person neither took reasonable steps to discover the true owner of wallet nor wait for the reasonable time to enable the owner to claim his wallet. He could went to the police station to identify the owner of the wallet if there were no other possible means and could wait for some reasonable time before using that.
ESSENTIALS OF CRIMINAL MISAPPROPRIATION OF PROPERTY
• Movable property of another person - Liability can be established under criminal misappropriation of property if a person uses a property belonging to another person for his own purpose. This concept covers the only the movable properties.
• Dishonest Intention - A takes away property belonging to B unknowingly or in good faith believing him to be its owner, then he cannot be held liable under criminal misappropriation of property because there was no dishonest intention on part of A.
Dishonest intention is essential for providing liability under this offence but the presence of the same at the time of taking possession of the property is not compulsory.
• Conversion or Misappropriation of property - It basically the situation when someone converts the property to his own use by derogating the right of the owner over that property.
• Finder of goods - When a person finds something belonging to another person and he took all the required steps to find its owner and he kept it for a reasonable time to restore it back to its owner, even after this, if he is unable to find its owner, he can use that property for own purpose. But, in absence of reasonable efforts and reasonable time, he will be liable under criminal Misappropriation.
CRIMINAL BREACH OF TRUST
According to the section 405 of Indian Penal code,1860 -“Whoever being in any manner entrusted with any property or with any dominion or control over property, dishonestly converts or misappropriates it for his own use in breach of any lane or any legal contract commits criminal breach of Trust”.
Under this offence, the victim accords his trust on the offender with respect to his property and the offender breaches that trust by misappropriating the entrusted property for his own use or purpose.
The person hands over his property to another or hand over the control without transferring the ownership of the property. This is done on basis on trust that gives rise to the fiduciary relationship between them.
Example - A master gave a laptop to his servant for giving this to B used it for own purpose and them gave it to B. Then, servant is liable for criminal breach of trust.
ESSENTIALS OF CRIMINAL OF BREACH OF TRUST
1. Entrustment of property is the most important essential for establishing liability under Criminal Breach of Trust is the entrustment of property i.e. transfer of property from one person to another on the basis of trust and in such a way that the farmer remains its owner.
2. Dominion over property - The person to whom the property with the possession but it does not mean that he can use the same for his own purpose.
3. Dishonest Misappropriation -Dishonest means generating wrongful gain or wrongful loss to a person, when the entrusted property is used by the person for his own purpose, he is liable for the same under Criminal Breach of trust.
THEFT AND CRIMINAL MISAPPROPRIATION OF PROPERTY
Suppose a person took away a moveable property from another in good faith believing it to be of his own. After some days, he learnt that it belonged to that another person and even after knowing it, he didn’t return it to its owner and kept it with himself. Now, will he be liable for theft or Criminal Misappropriation of Property? Here, he will be liable under Criminal misappropriation.
There remains some confusion in mind of some people between theft and Criminal misappropriation because both include taking away any movable property by another person and dishonest intention is present in both of these offences. But a lot of differences are there that separate these offences from each other.
In theft, the person takes away property from another with presence of dishonest intention in his mind without the permission of owner and right at the time when he took away the property, he becomes liable for committing theft.
In Criminal Misappropriation, presence of dishonest intention is not necessary while getting the possession of property and the person becomes liable when he unduly denies to give property to true owner.
Criminal Misappropriation of Property and Criminal Breach of Trust are the separate offences provided under the Indian Penal Code, 1860. In Criminal Breach of Trust, a Contractual Relationship is established between the offender and owner of the property because the owner entrusts the property to offender. While in Criminal Misappropriation, offender gets property in some natural manner or by some casualty due to which no contractual relationship is established. Only movable property can be misappropriated under Criminal Misappropriation, while in case of Criminal Breach of Trust, property misappropriated can be either movable or immovable.