IPC 406 – Provision and Punishment for Criminal Breach of Trust

Section 406 IPC is dealing with the punishment clause of Criminal Breach of trust, defined under section 405 of the Indian Penal Code, 1860. So basically by its own heading of section 405, it is to be clear that, when any “person” putting their trust on “someone” for transferring the possession of some property to “someone” and that “someone” thereafter breaches the trust of the “person” by retaining the property by some forge way or by any other act, then such type of activities done by any person has come under the ambit of criminal act under the provision of Indian Penal Code, 1860. The offenses of criminal breach of trust, as defined under section 405, is very similar to the offense of embezzlement under the English law.

Furthermore, to constitute the offense of criminal breach of trust under section 405, it must be established that the accused was entrusted with some property or power over the property of other person and that the person with mala-fide intention misappropriated it or converted it to their use. In short, the section reads as ‘dishonest misappropriation’ or ‘convert the property to own use’ some other person’s property. Criminal breach of trust and criminal misappropriation (under Section 403) is distinct from each other in the context of the fact that in the criminal breach of trust, the accused person is entrusted with property or control over the property.

Provisions under IPC: –

That the provision related to Criminal Breach of Trust is mentioned under Chapter VI (of offenses against the body) from section 405 to 409. Whereas section 405 defines Criminal Breach of Trust, section 406 provides punishment of offense defining u/s 405 and section 407-409 sets when some specific people and their punishment commit the wrong of breach of trust.

Although Section 405 has a wide ambit, however ‘entrustment’ of the property is an essential ingredient for an offense to be punished under S.406 of IPC.

Some of the other essential elements of the offense of Criminal Breach of Trust under Sec. 405 are the following: 

1. giving a charge of their property to any person in whom confidence is placed or providing any power over property;
2. Also, the person is entrusted:-
   1. •  With mala-fide intention misappropriates the property or converts the property to his use or,
      • With the mala-fide intention uses or disposes of that property or willfully suffers any person of any contracts which is legal made touching the discharge of such kind of trust.

Section 405 of the IPC extends to the entrustment of all type – whether, to clerks, servants, business persons or some other persons, just one thing is taken into consideration that, they are holding a position of trust. Entrustment need not be express always, and it may be implied.

Read Also: 5 Points To Consider Before Hiring Property Dispute Lawyers

Punishment (Under Section 406 IPC) 

Whoever commits offenses defined under section 405 of IPC shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Case laws: –

In the State of Gujarat vs. Jaswantlal Nathalal (AIR 1968 SC 700.) Supreme Court held pronounce that the expression ‘entrustment’ carries with it the implication that the person handing over any property or on whose behalf that property is handed over to another person, they continue to be its owner.

Further, the person who is handing over the property must have confidence in the person taking the property. To create a relationship based on trust between them. Only the transaction of sale cannot amount to an entrustment. If the accused had infringed or violated the conditions of purchase, the only legal help is to prosecute him under the law.

Stridhan and Criminal Breach of Trust: –

Basically, In Stridhan it includes all kind of gifts given by the husband to his wife before their wedding; Also, gifts given by the husband or as we can say (groom) and his family, or other guests or persons, and the wife’s (bride) parents to the wife at the time of marriage, and any type of gifts given to her after the marriage by an person including her parents, her husband and his husbands family, or anybody else. In Stridhan it may include jewelry, apartments, vehicles or any other item. Stridhan is considered as the exclusive property of the wife according to the Hindu Marriage Act, and the definition is accepted by judicial authorities for other purposes too.

Though Misappropriation of Stridhan by the husband or husband’s side is a punishable crime by the provision of law defined in IPC u/s 406 (“punishment for criminal breach of trust“), the definition is given u/s 405, while sections 407- section 409 defines the penal provision for breach of trust in some specific relationships. The spectrum of relationships covered by these sections which include the relationship between sender and carrier of property or goods, and between an owner of the property and their employee, and between the owner of property and banker, and between public and public officials, and between an owner of the property their attornies or agents. Section 406 provides three years simple or rigorous imprisonment, both part, i.e., 407 and section 408 provides seven years simple or rigorous imprisonment, and section 409 prescribes severe punishment from ten years – life imprisonment. By some section 406 can be more correctly described as “punishment for criminal breach of trust simpliciter” in the light of these undoubtedly severe sections. There are many contradictory views regarding that the components of the Stridhan which has been gifted by the husband or the husband’s side. Some experts say that taking back such kind gifts creates only civil liability, while some of in the opinion that this may attract IPC section 406 (Criminal Breach of Trust), which is a criminal provision.

If we talk about some other aspect of the term Stridhan, any gifts given by the wife’s side to the husband or husband’s family are to be returned if and when the marriage collapses. Because If these kinds of gifts are deemed by the court to have been given “in consideration of marriage” (or as we can say as a price for marriage), then this is considered as dowry, and the husband’s side may be liable under the provision of Dowry Act for the imprisonment and /or a fine or both for demanding these items or accepting these items.

The Apex Court of the country i.e., Supreme court quoted that the sections under 498a and 406 under the Indian penal code are widely misused, and for no reason, the husband and his family members are prosecuted and send behind bars thereby, tarnishing the reputation of the family, these sections are termed as a “legal terrorism”. Hence the apex court in a very recent judgment of “Arnesh Kumar Vs. The state of Bihar” has given some compulsory or obligatory proposal of guidelines which are as follows: –

1. All the State Governments to instruct its police officers not to directly arrest when a case under Section 498-A of the IPC is lodged but it’s necessary to satisfy themselves about the requirements for arrest under the framework laid down above flowing from Section 41, Cr.PC;
2. The police officer or in charge may provide a check-list under section 41(1)(b)(ii) of the Criminal Procedure Code which shall forward  and furnish the reasons and materials which necessitated the arrest while producing the accused person before the Magistrate for further detention;
3. The magistrate may pursue the report furnished by police, and only after recording its satisfaction, the magistrate authorizes detention.
4. Notice send (for appearing in court) in terms of Section 41A of Cr.P.C.must be reach before accused within 14 days from the date of filing the case.
5. Giving detention without recording any reason by Judicial Magistrate shall be liable for a departmental inquiry by the appropriate HC.
6. Once FIR under 498a/406 is lodged the apprehension of arrests may create even with the guidelines and safeguards as to be mandatorily implemented by the police officials. The police officer can follow the guidelines and can arrest the person.

Read Also: 8 Legal Documents to Check Before Buying Property

Conclusion

Lastly, I will conclude this article with If we have to make a person liable under the discussed provision, it is not only sufficient to establish that the property has not been mismanaged, also, It has to be established that the accused has put the property to his use with the mala-fide detention or to some unauthorized use. And Negligence does not come under the ambit of ‘dishonestly keeping the property in possession,’ it’s an exception.

The wrong of breach of trust under Section 406 is cognizable, and a warrant should, ordinarily, an issue in the first aspect. The wrong is not bailable. It is only compoundable with Court permission when the value of the property does not exceed Rs. 250 and not compoundable otherwise, and is triable by a Magistrate of the first or second class.

Ten Things That Happen When You Are In Frustration Of Contract

When a contract is entered into between two parties, specific duties and rights arise between those two parties. The frustration of contract is a scenario whereby some unforeseen events happens after the contract is entered into, which make the performance of the contract impossible. Such a situation is known as the frustration of the contract. The parties need not perform the contract; thereafter, they are relieved from the entire contractual obligation that arose from such contract.

English Law on the frustration of contract

The doctrine of frustration of contract was initially developed in the English laws. The case which developed this doctrine was Taylor v. Cardwell, whereby there was an opera house which was rented to hold concerts via contract between the parties. The opera house was subsequently destroyed by fire. The court held that the contract was frustrated as the subject-matter of contract on which the entire contract was made, was destroyed by fire and in no way, the contract could be further carried on.[1]

The doctrine of Frustration of contract under the Indian Law

As a general rule, once a contract is entered into between the parties, it has to be carried on according to such agreement. But there is an exception to this rule under the Indian Contract Act, 1872 under Section 56. The section reads as follows-

“Contract to do act afterward becoming impossible or unlawful.-A contract to do an act which, after the contract is made, becomes impossible, or, because of some event which the Promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.

Compensation for loss through non-performance of act known to be impossible or unlawful.-Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.”[2]

Therefore, a contract to do anything which is made impossible or unlawful to execute thereafter becomes void. Compensation is also provided to the party who suffers a loss on such non- performance of the contract by the person who knew that the act was unlawful or impossible to perform.

The doctrine is based on the legal maxim “les non cogit ad impossibilia,” which means the law will not compel a man to do what he cannot possibly do. The apex court very well explained the doctrine in the case of Satyabrata Ghose v. Mugneeram, whereby, the court held that the word ‘impossibility of contract’ and ‘frustration’ could be used as a synonym. Where the contract cannot be performed because of the impossibility, then the person cannot be compelled to do that task.[3]

 Conditions necessary for Section 56

1. There should be a valid contract existing between the parties. The contract occurred between the parties should satisfy all the requirements of a valid contract set out by the Indian Contract Act, 1972.
2. The contract must be set to be performed. That means it has not been performed either wholly or has been performed only in part. Only if some part of the contract is yet to be performed, section 56 will find its applicability.
3. The contract has either becomes impossible or unlawful after that. The contract, after being entered into, should become impossible to perform or unlawful. The party should be unaware of this fact or else they will have to pay the compensation to the party suffering from such known frustration of contract.

Grounds of the frustration of contract may be the destruction of the subject –matter, non- occurrence of the contemplated events, death or incapacity, change of circumstances, government, administration or legislation intervention, the intervention of war, and such other circumstances.

Conclusion

The doctrine of frustration of contract can be very well be defined after reading Section 56 of the Indian Contract Act, 1872. It is made evident can frustration can be allowed into in two circumstances, i.e., the impossibility of performance of contract and illegality of contract. Adequate compensation is provided to the party who has in any of the circumstances of the frustration suffered loss by the party who has gained something from the frustration.

[1] Taylor v. Cardwell (1863) 3 B.& S. 826.

[2] Indian Contract Act, 1872, s. 56.

[3] Satyabrata Ghose v. Mugneeram (1954) AIR 44.

10 Small But Important Things To Observe In Section 139 Of Negotiable Instruments Act

Section 139 of Negotiable Instruments act, 1881

As per the prevailing laws in India, under the Indian Evidence Act, every person until proven guilty is presumed to be innocent. Section 139 of Negotiable Instruments Act, 1881 talks about the liability of a person who is issuing a cheque which has been dishonored. Such a person is presumed to be guilty until and unless he proves his innocence. When an offense under section 138 is constituted, there is a set of admitted facts and situations where it is presumed that the person is guilty.[3]

In Krishi Vikas Kendra v Mukund[4], the amount due was paid partly by the accused. This amounts to a transaction made and the court held that the burden of proof is on the accused to prove his innocence with respect to dishonored cheque.

Under section 139 there is a presumption that a cheque presented is for a discharge of the liability of debt either partially or wholly. And until and unless the respondent purposes any purpose other than the discharge of liability, it shall be presumed under section 138.[5] The accused person cannot merely escape by saying it was only given as security and the day cheque was issued there was no liability towards the person.[6]

Once the presumption of liability is rebutted, the burden of proof shifts to the complainant to prove that the same cheque was issued for discharge of liability.[7] In the case of Rangappa v. Sri Mohan[8], it was held that if to any fact the accused has not replied in the statutory notice (notice under section 138) proves to be a merit for the complainant side.

This presumption is governed by the rule of evidence which is dealt by in section 118(a) of chapter XIII. Section 140 talks about the possible grounds which may not be allowed as a ground of defense for prosecution under section 138.

In the case of Krishna Janardhan Bhat v. Dattatraya G. Hedge[9],

“Presumption of innocence as human rights and the doctrine of reverse burden which is granted under section 139 should be balanced with respect to the facts of each case, material evidence on record and governing statutes of law.”[10]

For it is a presumption only with regard to existing debts. So, if the amount on the cheque exceeds the amount which is due to the person, then section 138 and section 139 shall not be attracted, this was held in the case of Angu Parameswari Textiles P Ltd. v. Sri Rajan and co.[11]

On the reading of this section, it is pertinent to highlight that court which is taking cognizance should be prima facie satisfied that the case is attracted under this section. The drawer of the cheque gets a chance to rebut this presumption at the trial.[12]

In the case of Kishan Rao v. Shankargouda[13], the SC held that section 1309 cannot be merely rebutted by denial. It has to be proved. The matter in controversy shall be proven to be denied with evidence.

This presumption is however not available to a money lender. He has to prove the fact of due of loan and liability through other evidence and not merely by a presumption of being guilty.[14]

The initial burden after discharged, Section 139 comes into the picture. In the case of A.B.M raja Sah v. B.M.S. Srinivas Sah[15], it was held that once signatures on the cheque were verified by the drawer and he s presumption arose and the accused couldn’t explain the liability. The court ordered the accused to pay twice the amount of the cheque and no sentence was passed.

CONCLUSION

When a cheque which was issued for discharge of liability or debt whether in whole or in part, shall under section 139 be presumed that the accused is liable for the offense under section 138 and thus the accused is under the burden of proof to prove its innocence.

[1] Added by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988

[2] Goa Plast (P) Ltd. V. Chico Ursula D’Souza, (2004) 1 BC 246 (SC)

[3] R. Sankaralingam v. Union of India; (1997) 1 BC 541

[4] (2007) 3 BC 542

[5] K. I George v. Muhammed Master

[6] K.N.Bena v. Muniyappan (2006) 4 BC 287

[7] Pine Products Industries v. RP Gupta and sons

[8] (2010) 11 SC 441

[9] 2008 (1) SCALE 421

[10] M.L. Tannan’s Banking Law and Practice in India, Student Edition, 2015

[11] (2002) 1 BC 99 (mad)

[12] Modi Cements Ltd. v. Kuchil Kumar Nandi, (1998) 1 BC 421 (SC)

[13] Criminal Appeal No. 803 of 2018

[14] M. senguttuvan v. Mahedevaswamy, (2007) 4 BC 708 (Kant)

[15][15] (2007) 4 BC 649 (Mad)

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Ten Little Tricks To Know About Interlocutory Application In India And Its Format

Interlocutory is a legal term which essentially refers to an order, sentence, decree, or judgment, given in an intermediate or transitional stage between the beginning and end of a cause of action, used to give an impermanent or temporary decision on an issue. Along these lines, an interlocutory order isn’t final and isn’t liable to immediate appeal.

What is the interlocutory application

An interlocutory application meaning is an application which is moved in the primary appeal. It is normally documented when you request some urgent relief or to convey certain new facts to the learning of the court. In the event that the supreme court order says ‘interlocutory application disposed of”, it implies that you had documented an application looking for some relief, and in the wake of hearing you on the application, the court has passed an order in your application.

Interlocutory Petition mentioned in the Civil Rules of Practice, Rule 2 (j) states ” application to the court for any suit, appeal or proceedings already instituted in such court, other than a proceeding for execution of a decree or order.” It is fascinating to take note of that “application” is characterized in Rule 2 (c) that incorporates execution application, execution petition, and interlocutory application, both written and oral.

Interlocutory Application Format:-

INTERLOCUTORY APPLICATION

BEFORE THE APPELLATE TRIBUNAL FOR ELECTRICITY

IA NO. ______OF 200

In

Appeal/Original Petition No. ________of 200 .

CAUSE TITLE

Set out the Appeal No. _________________of 200

Appeal / Petition short cause title

Set out the 1. Appeal No.____________200

Cause Title – Interlocutory Application

Petition for stay/direction/dispense with/condone delay/calling records

The applicant above-named state/s as follows :

1. Set out the relief (s)

2. Brief facts

3. The basis on which interim orders prayed for

4. The balance of convenience, if any :

(All interlocutory applications shall be supported by an affidavit sworn by the Applicant/on its behalf and attested by a Notary Public).

DECLARATION

The applicant above named hereby solemnly declare that nothing material has been concealed or suppressed and further declare that the enclosures and typed set of material papers relied upon and filed herewith are true copies of the originals or fair reproduction of the originals or true translation thereof.

Verified at_________dated at _______this day __________of _______200 .

Counsel for Applicant                                                                                                                                                                                                        Applicant

VERIFICATION

I __________________(Name of the applicant) S/o.W/o.D/o. (indicate any one, as the case may be ) ___________age ____________working as __________ in the office of _______________resident of _______________ do hereby verify that the contents of the paras _____________to ___________are true to my personal knowledge / derived from official record ) and para _________ to _______are believed to be true on legal advice and that I have not suppressed any material facts.

Date :

Place :

                                                                                                                                                     Signature of the Appellant/Petitioner or authorized officer

The Code of Civil Procedure with its Rule 3(9) defines an Original Petition as a petition by which procedures are founded in a court other than a suit or appeal or proceeding in the execution of a decree or order.

This elucidates and clarifies the distinction between an original appeal to and an Interlocutory order as

• The original appeal of is identified with the purpose of the start of a dispute while the interlocutory request is recorded within the main appeal.
• The original petition establishes the procedures while the interlocutory petition looks for interim relief.
• Interlocutory petitions can be named as a type of incidental procedures dissimilar to original appeal to and are recorded to support the principle/main petitions.
• Interlocutory petitions look for relief amid the pendency of the main appeal to and can be discarded before the final judgment.

In T.V. Satyanarayana v. Subba Aruna Meenakshi, the question into thought was whether an appeal lies against the order made by the family court on an application exhibited under section 24 of the Hindu Marriage Act allowing interim maintenance under Section 19 of the Family Courts Act? It was held that  Interlocutory Application “means an application to the Court for any suit, appeal or proceeding already instituted in such Court other than an application for execution of the decree or setting aside the decree or last order made in such suit, appeal or proceeding.” An application under Section 24 of the Hindu Marriage Act squarely falls inside the significance of the words “Interlocutory Application,” as it could be made just in the primary proceeding under either provision of the Hindu Marriage Act. Any order passed on such an application would unquestionably be an interlocutory request.

The Supreme Court while thinking about the maintainability of appeals against judgment and interlocutory orders, considered a progression of decisions of various Courts rendered regarding the matter, held that each interlocutory order can’t be viewed as a judgment yet just those orders would be judgments which decide matter in hand or influence indispensable and important rights of the parties and which work on the serious injustice to the party concerned.

An Interlocutory Petition begins with a point of view to shield the finishes of equity from being vanquished when the Original Petition can’t address the prompt conditions. Interlocutory Applications or Interlocutory Petitions are recorded to help the primary appeal for an interlocutory alleviation in the midst of pendency of the main Petition. The purpose of this article is to mostly feature the interlocutory applications and different case laws to imply the statement.

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10 Latest Developments In Change Your Name After Your Wedding In India?

Introduction

Anywhere in the world, Marriage is a life-changing decision. It places responsibilities on the husband as well as on wife. Whereas, in India, the responsibilities of the Husband is little more than of wife. While she has to leave her parents home and start living with the Husband’s family, she is also supposed to change her name. Indian law does not mandate name change for anyone. It is upon total discretion of the parties to change their name or not.  Name changing is a simple procedure. And it is common for all the states.

Before moving further, it must be noted that; Law allows a person to change his/her name only once during the lifetime. So before taking such decisions, one must be sure about it.

Registration of Marriage in India

Before applying for the name change, a person needs to acquire a marriage certificate. For that, registration of marriage is required. In short, registration of marriage provides a Marriage Certificate. You can download the form from the state government’s site and submit it at Sub Registrar’s Office. You need to attach photocopies of the documents like PAN card, AADHAR card etc., whose list you can find on the government’s Website. Once the marriage registration is complete, you will get the marriage certificate.

Read Also: Women, No Need to Change Your Name on Passport After Marriage

Procedure to Change Name After Marriage in India

After the Marriage Certificate, the procedure is straightforward but it may take some time. As mentioned above, it is not mandatory by law and you can change your first name only once.

• Making Of Affidavit

An affidavit is a written statement confirmed by Oath and Affirmation. For the name change, you need to create an affidavit with your detail and your wish to change the name. You need to provide details like your maiden name, proposed new name, husband’s name, and the new address. Also, with the affidavit, you need to supply the copy of the Marriage certificate. Moreover, you need to self attest the document with your recent photographs. Once the affidavit is complete, Print the document on an Rs. 10 stamp paper.

• Notarize the Affidavit

After printing the Affidavit, you need to get it Notarize. You can visit a Notary to get this done. A notary is a person who has the authority of government to witness signature on documents. In case a person is living abroad, the same can be done from the embassy. Once the affidavit is notarized, you are almost done with the name change.

• Publication of Name Change

After the Notarize, you need to get proof of your name change. Means, you need to get a statement from the third party stating that you have changed your name. Even if the statement is from the third party, you need to submit proclamation of the same yourself. For this, one has to do the following two things:-

1. Place an Advertisement– Publish an Ad in two daily locals regarding the same, that you have changed your name in the presence of the notary. Whereas one Ad should be in the local language daily and others in the English language. Every newspaper has designated columns for such kind of Ads. Once done, keep a few copies of such Ads for future reference.                                                                                                                                                                                                                                Sample-                                                                                                                                                                                                                                    “ I, (insert your maiden full name) married to (insert your husband’s full name), on (insert wedding date in DD-MM-YYYY format) residing at (insert your current permanent address) have changed my name to (insert your new name) with Affidavit dated (insert date of affidavit) sworn before Notary (insert name and city of the notary)”                                 
2. Gazette Publication– You need to make an announcement of name change in the Gazette of India. Gazette of India is an official government journal and it is published by the government. However, you need to submit an application form to the Department of Publication, which works under the Ministry of Urban Development. Moreover, you need to attach the Affidavit of the name change with the Application.

At this point, you can notify all the institutions, such as your bank, college, and workplace, that your name has changed after marriage.

Conclusion

Changing name after marriage in India is a simple process and it has its own benefits. Name changing can be an exciting and important part of the marriage. But one must do it the right way to avoid headaches. One must take help of a family law attorney while changing the name. Name change after the marriage has several effects. Name change after marriage helps in the documentation. While purchasing a joint property, it is easy to prove the Husband-wife relationship with a common surname with husband. Also, it is less complicated for children to write two surnames after the marriage or choosing the one.

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