What is criminal misappropriation? How it differs from criminal breach of trust and cheating ? [MPCJ 2012]
Ans. The offence of criminal misappropriation consists in dishonest misappropriation or conversion either permanently or temporarily of movable property which is already in the possession of the offender. Such possession of the property may have earlier come to the accused either innocently such as with the consent of owner or even wrongfully such as by theft etc. An illustrations (a), (b) and (c) attached to the section 403 of IPC show that how an original innocent taking gets transformed into criminal misappropriation by subsequent acts. And, such subsequent act may be in the form of change of intention or gaining knowledge of some new facts with which the accused was not previously acquainted and thereby rendering an initial innocent taking into an offence. The essential ingredients may be mentioned as under-
- There has to be a dishonest mens rea.
- There has to be misappropriation or conversion of the property for a person’s own use. The appropriate means to set apart or assign the property to oneself or to another to the exclusion of the owner. Likewise, the words ‘ convert to own use’ means dealing with the property of another, as if it is one’s own property. Most importantly, there must be actual misappropriation or conversion of thing. The Hon’ble Apex Court has also held in Ramaswami Nadar v. State of Madras , AIR 1958 SC 56 that the words used in section 403 of IPC ‘converts to his own use’ necessarily connotes that the accused has used or dealt with the property in derogation of the rights of the owner of the property.
- And, such property must be movable.
Distinction between criminal misappropriation and criminal breach of trust :- Section 403 and 405 of the IPC respectively defines the offence of criminal misappropriation and criminal breach of trust. Both are offences against the property but they differ as under:-
- In criminal misappropriation, the offender may have come into the possession of the property in anyway. Whereas, for criminal breach of trust the possession of the property must come with accused by a particular mode, that is by way of ‘Entrustment’.
- In criminal misappropriation, there is dishonest misappropriation or conversion. Whereas, in criminal breach of trust there can be dishonest misappropriation or conversion and also by way of dishonest use or disposition of the property in violation of the term of law or contract constituting the entrustment of such property.
- The criminal misappropriation can be only with respect to movable property. Whereas, the offence of criminal breach of trust can be committed with respect to both movable and immovable property.
Distinction between criminal misappropriation and cheating :- Section 403 and 415 of the IPC respectively defines the offence of criminal misappropriation and cheating.
Both are offences against the property but they differ as under:-
- In criminal misappropriation, the possession of the property comes with accused first in point time to commit the offence. Whereas, the offence of cheating may be committed regardless of the possession of the property with the offender.
- In criminal misappropriation, there is dishonest misappropriation or conversion. Whereas, in cheating at the first instance there is deception to the complainant and thereafter a fraudulent or dishonest inducement to deliver property etc.
- In criminal misappropriation, the harm is restricted to the movable property only. Whereas, in cheating the offender may even cause harm or injury to body, mind and reputation of the complainant.
- The criminal misappropriation can be only with respect to movable property. Whereas, the offence of cheating can be committed with respect to both movable and immovable property.