Theft & Criminal Breach of Trust ~ Balochistan Law Forum

Q- Write a detail note on Theft & Criminal Breach of Trust. Also discuss difference between Theft & Criminal Breach of Trust.

Ans:

1. INTRODUCTION.

Theft & Criminal Breach of Trust both fall in the category of offences against property which is dealt with in Pakistan Penal Code 1860. Both offences are related to property. Theft is the offence which is committed without the consent of the owner. To constitute the offence of Criminal Breach of Trust there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged.

2. RELEVANT PROVISIONS.

(I). Sections 378 to 382 of Pakistan Penal Code 1860 deal the term Theft.

(II). Sections 405 to 409 of Pakistan Penal Code 1860 deal the term Criminal Breach of Trust.

3 . MEANING OF THEFT UNDER BLACK’S LAW DICTIONARY.

Theft is the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.

4. DEFINITION OF THEFT UNDER SECTION 378 OF PAKISTAN PENAL CODE 1860.

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

Explanation 1:

A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is served from the earth.

Explanation 2:

A moving effected by the same act which effects the severance may be a theft.

Explanation 3:

A person is said to cause a thing to move by removing an obstacle, which 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 express 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.

(III). Illustrations.

(a). ‘A’ cuts 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 such taking, the has committed theft.

(b). ‘A’ puts a bait for dogs in his pockets, and thus induces ‘Z's dog to follow it. Here if ‘A's intention be dishonestly 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 runs away with the plate, without ‘Z's consent. ‘A’ has committed theft.

(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 2'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 in ‘Z's possession, and if ‘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 soiling it when the toss is forgotten Here ‘A’. at the time of first moving the ring, commits the theft.

(i). ‘A’ delivers his watch to ‘Z’, a jeweler to be regulated. ‘Z’ carries it to his shop. ‘A’, not owing to the jeweler, any debt for which the jewelers might lawfully detain the watch as a security, enters the shop openly, takes his watch by force out of ‘Y's hand, and carries it away. Here ‘A’, though he may have committed criminal trespass and assault, has not committed theft, inasmuch as what he did was not done dishonestly.

(j). If ‘A’ owes money to ‘Z’ for repairing the watch, and if ‘Z’ retains the watch lawfully as a security for the debt, and ‘A’ takes the watch out of ‘Z's possession, with the intention of depriving ‘Z’ of the property as security for his debt. He commits theft, inasmuch as he takes it dishonestly.

(k). Again, if ‘A’ having pawned his watch to ‘Z’, takes it of ‘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 inasmuch 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 to ‘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 had ‘Z's implied consent to use ‘Z's book. If this was ‘A's impression, ‘A’ has not committed theft.

. ‘A’ asks charity from ‘Z's wife. She gives ‘A’ money, food and clothes, which ‘A’ knows to belong to 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 S's possession. Here, as ‘A’ does not take dishonestly, he does not commit theft.

5. INGREDIENTS OF THEFT.

Following are the important ingredients of theft.

(i). Dishonest Intention.

It is essential for Theft that the removal of the property in question must have been with the intention to take the property dishonestly. In other words, there must be intent to cause Wrongful Gain to 1 person or wrongful loss to another person. Where property is recovered in the assertion of a contested claim of rights however unjustified that claim may be, the removal thereof does not constitute Theft.

(ii). Movable Property.

The property must be movable. Movable property means such property which is easily moved from one place to another place and not attached with the earth which is called movable property.

(iii). Out of Possession of Any Person.

The property which is subject matter of Theft, should be in possession of someone else than the person charged with Theft. As where the property is not removed from the possession of another person, no offence is said to have been committed. So in order to constitute the offence of Theft, the property must be in possession of any person other than the person charged with Theft.

(iv). Without Consent of That Person.

The taking of the property out of the possession of owner must be without consent. As where the things are moved with the consent of the owner. The offence of Theft is not constituted. So the taking or moving of property out of possession of owner must be without his consent.

(v). Moves That Property is Order To Such Taking.

Since the definition of theft requires that the moving of property is to be “in order to such taking” the word “such” meaning intending to take dishonestly, the very moving must be with dishonest intention. Till the property is moved no offence of Theft can be committed if the accused had intended to take dishonestly the property out of possession of any other person without his consent. So there must be must removal of property in order to accomplish the taking of it.

6. PUNISHMENT FOR THEFT UNDER SECTION 379 OF PAKISTAN PENAL CODE 1860.

Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to 3 years, or with fine, or with both.

Case Law.

2000 MLD 651.

It was held that person found guilty of offence of Theft Under Section 379 of Pakistan Penal Code 1860 cannot Simultaneously be convicted Under Section 411 of Pakistan Penal Code 1860.

7.PUNISHMENT FOR THEFT IN DWELLING HOUSE, ETC.. UNDER SECTION 380 OF PAKISTAN PENAL CODE 1860.

Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

8. PUNISHMENT FOR THEFT BY CLERK OR SERVANT OR PROPERTY IN POSSESSION OF MASTER UNDER SECTION 381 OF PAKISTAN PENAL CODE 1860.

Whoever being a clerk or servant, or being employed in the capacity of a clerk or servant, commits theft in respect of any property in the possession of his master or-employer, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

9. PUNISHMENT FOR THEFT OF A CAR OR OTHER MOTOR VEHICLES UNDER SECTION 381-A OF PAKISTAN PENAL CODE 1860.

Whoever commits theft of a car or any other motor vehicle, including motor-cycle, scooter and Tractor shall be punished with imprisonment of either description for a term which may extend to 7 years and with fine not exceeding the value of the stolen car or motor vehicle.

[Explanation: Theft of an electric motor of a tube-well or transformer shall be within the meaning of this section.]

10. PUNISHMENT FOR THEFT AFTER PREPARATION MADE FOR CAUSING DEATH, HURT OR RESTRAINT IN ORDER TO THE COMMISSION OF THE THEFT UNDER SECTION 382 OF PAKISTAN PENAL CODE 1860.

Whoever, commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property' taken by such theft, shall be punished with rigorous imprisonment for a term, which may extend to 10 years, and shall also be liable to fine.

(i). Illustrations.

(a). ‘A’ commits theft on property in ‘Z's possession, and, while committing this theft, he has a loaded pistol under his garment having provided this pistol for the purpose of hurting ‘Z’ in case ‘Z’ should resist. ‘A’ has committed the offence defined in this section.

(b). ‘A’ picks ‘Z's pocket, having posted several of his companions near him, in order that they may restrain ‘Z’. If ‘Z’ should perceive what is passing and should resist, or should attempt to apprehend ‘A’. ‘A’ has committed the offence defined in this section.

11. MEANING OF CRIMINAL BREACH OF TRUST UNDER BLACK’S LAW DICTIONARY.

The term Breach of Trust means; the Wrongful Misappropriation by a trustee of any fund or property which had been lawfully committed to him in a fiduciary character.

12. DEFINITION OF CRIMINAL BREACH OF TRUST UNDER SECTION 405 OF PAKISTAN PENAL CODE 1860.

Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly 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 willfully suffers any other person so to do, commits "criminal breach of trust.

(I). Illustrations.

(a). ‘A’, being executor to the wilt 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, ‘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 Dacca, is agent for ‘Z’, residing at Lahore. 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 ‘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.

(f). ‘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.

13. CONCEPT OF CRIMINAL BREACH OF TRUST UNDER PAKISTAN PENAL CODE 1860.

To constitute the offence of Criminal Breach of Trust there must be dishonest misappropriation by a person in whom confidence is placed as to the custody or management of the property in respect of which the breach of trust is charged.

14. SCOPE OF SECTION 405 OF PAKISTAN PENAL CODE 1860.

The term of this Section are very narrow as compared to the one discussed below. It applies to one who is in any manner entrusted which property or dominion over property.

Case Law.

PLD 1956 SC 417.

To establish a charge of Criminal Breach of Trust the prosecution must prove not only entrustment of or dominion over property but also that the accused dishonestly misappropriated, converted, used or disposed of that property himself or that he willfully suffered some other person to do so.

15. INGREDIENTS OF CRIMINAL BREACH OF TRUST UNDER SECTION 405 OF PAKISTAN PENAL CODE 1860.

Following are the important ingredients of Criminal Breach of Trust.

(I). Entrusting Any Person.

The word entrustment in Section 405 of Pakistan Penal Code 1860 connotes that the accused holds the property in a fiduciary capacity. One of the ingredients of the offence of the Criminal Breach of Trust is that the person accused must have been entrusted with the property in question.

(II). Misappropriation or Conversion.

For an offence of Criminal Breach of Trust besides showing that the property was entrusted to the accused it is further necessary to show that he had dishonestly misappropriated or converted it to his own use. Therefore in absence of any allegation of misappropriation or conversion of property by the accused, an offence under Section 406 of Pakistan Penal Code 1860 is not constituted.

(III). Disposal In Violation of Any Law or Contract.

Where the contract is such that it creates a trust in respect of the property alleged to have been misappropriation and converted, this section is attracted. It means that where there was a contract of trust in order to hold certain property in question and the same is violated by disposing of the property in any manner other than that was incorporated in the contract, it would amount to Criminal Breach of Trust. Accused shall also be liable under this Section if he does any act in violation of the law concerning the trust.

(IV). Dishonestly.

Another important ingredient of Criminal Breach of Trust is that misappropriation or conversion must be the result of dishonestly.

Case Law.

1985 P. Cr. L.J 596 (DB).

Every breach of trust gives rise to a suit for damages but it is only when there is evidence of mental act of fraudulent misappropriation that the commission of embezzlement of amount becomes a penal offence punishable as Criminal Breach of Trust.

16. PUNISHMENT FOR CRIMINAL BREACH OF TRUST UNDER SECTION 406 OF PAKISTAN PENAL CODE 1860.

Whoever, commits criminal breach of trust snail be punished with imprisonment of either description for a term which may extend to [7] years, or with fine, or with both.

17. PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY CARRIER ETC. UNDER SECTION 407 OF PAKISTAN PENAL CODE 1860.

Whoever, being entrusted with property as a carrier, wharfinger or warehouse-Keeper, commits criminal breach of trust in respect of such property, shall be punished with imprisonment of either description for a term which may extend to 7 years, and shall also be liable to fine.

18. PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY CLERK OR SERVANT UNDER SECTION 408 OF PAKISTAN PENAL CODE 1860.

Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, 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 7 years, and shall also be liable to fine.

19. PUNISHMENT FOR CRIMINAL BREACH OF TRUST BY PUBLIC SERVANT, OR BY BANKER, MERCHANT OR AGENT UNDER SECTION 409 OF PAKISTAN PENAL CODE 1860.

Whoever being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

20. DIFFERENCE BETWEEN THEFT AND CRIMINAL BREACH OF TRUST.

(I). As To Relevant Provisions.

Theft.

Sections 378 to 382 of Pakistan Penal Code 1860 deal the term Theft.

Criminal Breach of Trust.

Sections 405 to 409 of Pakistan Penal Code 1860 deal the term Criminal Breach of Trust.

(II). As To Meaning.

Theft.

Theft is the felonious taking and removing of another’s personal property with the intent of depriving the true owner of it.

Criminal Breach of Trust.

The term Breach of Trust means; the Wrongful Misappropriation by a trustee of any fund or property which had been lawfully committed to him in a fiduciary character.

(III). As To Definition.

Theft.

Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

Criminal Breach of Trust.

(IV). As To Mode of Acquisition.

Theft.

In Theft, there is wrongful taking of movable property out of the possession of the owner i.e. by stealth without the owner’s knowledge.

Criminal Breach of Trust.

In Criminal Breach of Trust, the property is given on trust or received on one’s behalf and instead of discharging the trust it is dishonestly misappropriated or use or disposed of in violation of any law.

(V). As To Original Taking of Property.

Theft.

In a Theft the original taking is dishonest and without the consent of the owner.

Criminal Breach of Trust.

In a Criminal Breach of Trust, the original taking may be both honest and with the consent of the owner.

(VI). As To Possession.

Theft.

In Theft, the offence is completed as soon as the property is dishonestly taken away.

Criminal Breach of Trust.

In Criminal Breach of Trust, the offender prior to the offence is himself in the possession of property and the offence is completed when he dishonestly coverts the same to his own.

(VII). As To Nature.

Theft.

In Theft, the property in question is only a movable property.

Criminal Breach of Trust.

In Criminal Breach of Trust, the property is question may be movable or immovable.

(VIII). As To Relation.

Theft.

In Theft, there is no contractual relation between the parties.

Criminal Breach of Trust.

In Criminal Breach of Trust, there is such a contract used relation between the parties.

(IX). As To Punishment.

Theft.

The punishment is imprisonment of either description for 3 years or with fine or with both.

Criminal Breach of Trust.

The punishment is imprisonment of either description for a term of 7 years or with fine or with both.

21. CONCLUSION.

The pith and marrow of all the previous discussion there is no iota untruth shows that Theft & Criminal Breach of Trust both are criminal offence under Pakistan Penal Code 1860. These offence deal property movable and immovable. Sections 378 to 382 of Pakistan Penal Code 1860 deal the term Theft. Sections 405 to 409 of Pakistan Penal Code 1860 deal the term Criminal Breach of Trust.