Report No. 42
17.31. Sections 405 to 409.-
The next five sections (sections 405 to 409) deal with criminal breach of trust. According to the definition in section 405, it means dishonest misappropriation or conversion to his own use of property which has been entrusted to the offender, or dishonest disposal of such property contrary to any agreement or any direction of law. The definition is, in our opinion, satisfactory, and the illustrations to that section, which are six in number, bring out the idea clearly.
17.32. Section 40.-amendment recommended.-
Section 406 provides the punishment for criminal breach of trust in ordinary cases, and the three sections that follow deal with aggravated forms of that offence. Section 408 dealing with breach of trust by "clerk or servant" may be brought into line with section 381 as proposed to be revised,1 so that breach of trust by any employee in respect of his employer's property will be covered.
1. See para. 17.10, above.
17.33. Section 40.-amendments recommended.-
If the offence is committed by a public servant or by a banker or agent, the maximum punishment is life imprisonment under section 409. We consider this excessive, and as proposed in regard to other similar sections in the Code, we recommend that the punishment may be "rigorous imprisonment for a term which may extend to 14 years" besides fine. The word "factor", which is obsolete, should be omitted.
Receiving Stolen Property
17.34. Section 410.-
Sections 410 to 414 deal with stolen property. This is defined in section 410 as property 'the possession of which has been transferred by theft, extortion, robbery' and also property 'which has been misappropriated or in respect of which criminal breach of trust has been committed', whether any of those offences took place in or out of India. In case, however, such property comes into the possession of a person legally entitled to its possession, it thereupon ceases to be stolen property.
17.35. Property obtained by cheating be included.-
We do not understand why property obtained by cheating is not called stolen property. Cheating seems to us as close to theft as criminal misappropriation, and perhaps even closer, because although in cheating property is taken with the consent of the person cheated, that consent is vitiated by deception. We suggest, therefore, that the definition of 'stolen property' should be extended to cover property obtained by cheating. This may be done by substituting for the words "by theft, or by extortion, or by robbery' the words "by theft, extortion, robbery or cheating".
17.36. Explanation and illustration to be added.-
Further, we feel that the definition does not expressly cover a situation which it should, namely, when a child below the minimum age of criminal responsibility1, or an insane person2, commits theft which, in law, is not theft, and passes the property to another person who receives it dishonestly. Such a person should be liable to punishment in the same way as any other person receiving stolen property, and we propose that this idea should be clearly expressed in the definition section by adding to it an explanation and illustration as follows:
"Explanation.- Property the possession whereof has been transferred by an act which would otherwise be theft, robbery or criminal misappropriation, but it not that offence by virtue of section 82 or section 84, shall be deemed to be stolen property.
Illustration
A, a child nine years of age, snatches away a necklace from another child, voluntarily causing hurt to that child. Z, knowing this fact, dishonestly receives the necklace from A. Though A's act is not robbery by virtue of section 82, the necklace is stolen property, and Z has committed the offence defined in section 411".
1. Under section 82 as proposed, the age will be ten years. See paras. 4.23 and 4.24, above.
2. Section 84.
17.37. Sections 41.-amendment recommended.-
The punishment under section 411 for receiving stolen property is three years' imprisonment as the maximum. We think that the punishment should be higher if the stolen property is the property of Government or of a local authority. In such a case the imprisonment may be upto seven years. The following may be added to section 411.-
"and if the stolen property is the property of the Government or of a local authority shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
17.38. Sections 412 and 41.-amendment recommended.-
Section 412 relates to dishonestly receiving property stolen in the commission of a dacoity, and section 413 punishes a habitual dealer in stolen property. The same punishment is provided for these two offences, namely, imprisonment for life or rigorous imprisonment for a term which may extend to ten years. As in other sections we suggest that this should be altered to "rigorous imprisonment for a term which may extend to fourteen years", life imprisonment being deleted.
17.39. Section 41.-amendment recommended.-
As in the case of dishonestly receiving stolen property punishable under section 411, we propose that under section 414 also, where the stolen property is the property of the Government or of a local authority the imprisonment may go upto seven years. Accordingly, the following words may be added to the section at the end.-
"and if the stolen property is the property of the Government or of a local authority, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
Cheating
17.40. Section 415.-
The definition of 'cheating' in section 415 is really in two parts though printed as one. The first part says, "whoever by deceiving any person, fraudulently, or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person should retain any property" cheats. The second part describes as cheating the act of a person who "by deceiving any person, intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property".
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