High court case law , details discussion on Definition and scope of treason criminal (406).
خیانت مجرمانہ (406) کی تعریف اور سکوپ
The concept of trust envisages that one person (the settlor) while relying upon another person (the trustee) and reposing special confidence in him commits property to him. There is a fiduciary relationship between the two in law. Section 405 PPC defines criminal breach of trustm
The essential ingredients of criminal breach of trust under section 405 PPC are:
(i) the accused must be entrusted with property or dominion over it; and
(ii) he must have dishonestly misappropriated the property or converted it to his own use or disposes it of in violation of any trust or willfully suffers any other person to do so.
The offence of criminal breach of trust resembles the offence of embezzlement under the English law. The punishment for ordinary cases is provided in section 406 PPC but there are aggravated forms of the offence also which are dealt with under section 407 to 409 PPC.
The first condition mentions three important terms: entrustment, dominion and property. “Entrustment” means handing over possession of something for some purpose without conferring the right of ownership while “dominion” refers to “the right of control or possession over something, such as, dominion over the truck”. 3The term “property” has been used without any qualification so it must be understood in the wider sense. There is no reason to restrict its meaning to movable property. Further, the word “property” must be read in conjunction with “entrustment” and “dominion”. A trust contemplated by section 405 PPC would arise only when the property belongs to someone other than the accused.
According to the second condition, the accused must be shown to have mens rea. Section 24 PPC defines “dishonestly” as the doing of an act with the intention of causing wrongful gain to one person or wrongful loss to another person. Thus, in the context of section 405 PPC the property must be lost to the owner or he must be wrongfully kept out of it. Dishonest misappropriation may sometimes be inferred from the circumstances if there is no direct evidence. This second condition is satisfied by any one of four positive acts, namely, misappropriation, conversion, use or disposal of property.
The offence of criminal breach of trust as defined in section 405 PPC is distinct from the offence of cheating under section 420 PPC. Basu explains: “Property obtained by cheating is not capable of being fraudulently converted under section 405. The notion of a trust is that there is a person trustee or entrustee, in whom confidence is reposed by another who commits property to him; this again supposes that the confidence is freely given. A person who obtains a property by trick from another bears no resemblance to a trustee and cannot be regarded as a trustee under section 405. The essence of the offence under section 405 is the dishonest conversion of the property entrusted, but the act of cheating itself involves a conversion. Conversion signifies the depriving of the owner of the use and possession of his property. When the cheat afterwards sells or consumes or otherwise uses the fruit of his cheating, he is not committing an act of conversion, for the conversion is already done, but he is furnishing evidence of the fraud he practised to get hold of the property. Therefore, cheating is a complete offence by itself … The offence under section 420 is complete as soon as delivery is obtained by cheating, and without further act of misappropriation there can be no breach of trust.”
The law recognizes a distinction between investment of money and entrustment thereof. In the former the sum paid or invested is to be utilized for a particular purpose while in the latter case it is to be retained and preserved for return to the giver and is not meant to be utilized for any other purpose.
Crl. Misc. No.69238/B/2021
Muhammad Saleem etc Vs The State etc.
2024 MLD 309
PLJ 2022 Cr.C 1314
Comments
Post a Comment