Criminal Misappropriation

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Criminal misappropriation

Criminal misappropriation takes place when the possession has been innocently come by, but where, by a subsequent change of intention, or the knowledge of new fact with which the party was not previously acquainted, the retaining becomes wrongful and fraudulent. A person commits criminal misappropriation, if he:

• Dishonestly misappropriates or converts any property into his own use,  
• Such property should be movable.  

For Example – The retention of money by a servant authorized to collect it from a person may be criminal misappropriation even though he retains it on account of wages due to him.

Whoever dishonestly misappropriates any movable property shall be punished with imprisonment, which may extend to two years, or fine, or with both.

Section 403 in The Indian Penal Code 403. Dishonest misappropriation of property.—Whoever dishonestly mis-appropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Breach of trust and cheating

In cheating, the wrong-doer deceives any person dishonestly and fraudulently and induces such person to deliver any property. The wrongdoer may include the deceived person to do or omit an act. The act of cheating starts from inducing and ends when the wrong-doer obtains the property. Cheating may be done by any person. Cheating can be played against immovable property only. In cheating, property is removed from the possession of the owner by the cheater.

In trust, the owner of the property entrusts the property to the wrong-doer having “trust” and belief in him. The act of criminal breach of trust can be attributed, when the entrusted property was misappropriated. In the beginning, i.e. when the property is entrusted, no offence can be attributed. Generally, the criminal breach of trust is committed by the Bailees, carriers, executors, agents, employees, etc.

Criminal breach of trust can be played against movable or immovable property.  In this, the property is entrusted by the owner to the offender with a good faith and trust. Thereafter, the wrong-doer misappropriates it causing breach of trust.

falsification of records

Section 464: A person is said to make a false document:  

• Who dishonestly or fraudulently makes, signs, seals or executes a document or part of a document, or makes any mark denoting the execution of a document, with the intention of causing it to be believed that such document or part of a document was made, signed, sealed or executed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed, or at a time at which he knows that it was not made, signed, sealed or executed; or
• Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document in any material part thereof, after it has been made or executed either by himself or by any other person, whether such person be living or dead at the time of such alteration; or
• Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration.

Forgery

Forgery involves a false document, signature, or other imitation of an object of value used with the intent to deceive another. Those who commit forgery are often charged with the crime of fraud. Documents that can be the object of forgery include contracts, identification cards, and legal certificates. Most states require that forgery be done with the intent to commit fraud or larceny.

According to Section 463 of the Indian Penal Code, “Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery.”

The term ‘fraud’ in Section 463 implies an infringement of someone’s legal right though not necessarily connected with deprivation of property. Intent to defraud implies (a) an intention to deceive and (b) such deception involving the causing of legal injury. Unless there is an element of fraud, the making of a false document would not amount to a forgery.

It should be noted that intention to cause injury is not an essential ingredient of the offence of forgery. As per Section 463, intention to cause damage or injury to the public or person is only one of the five situations. The other situations being: (i) to support any claim or title (ii) cause any person to part with property; (iii) enter into any implied or express contract; or (iv) with intent to commit fraud. The first component, namely, intention to cause damage is intent complete in itself.

The definition in Section 463 is itself subject to the definition in Section 464, in which the two essential elements are that the act should be done ‘dishonestly and fraudulently’. In other words, whichever of the intents as provided in Section 463 are applicable, the act itself must be done dishonestly and fraudulently to sustain the allegation of forgery.