(i) consent of the person who is

(i) In theft the offender is not in possession of the property which he moves out of the possession of another intending to take it dishonestly; but in the other two offences, herein been distinguished, the property is already in the possession of the offender and the wrong consists in dishonest user, not in possession which is lawful.

(ii) In criminal breach of trust there is an entrustment of property, express or implied, with the offender and he stands in a fiduciary capacity but in criminal misappropriation the property may come into the possession of the offender anyhow but not unlawfully, while in theft the possession of the property by the offender if he succeeds in taking it, is and remains unlawful. (iii) In theft the property is taken without consent of the person in possession of it; in criminal breach of trust its possession by the offender is with consent, while in criminal misappropriation such possession is neither with nor without the consent of the person who is the lawful owner or possessor of such property but the possession is nevertheless not unlawful. (iv) In criminal breach of trust there is a contractual relationship of the offender with regard to the property which he holds subject to some duty or obligation to apply it according to the trust but he dishonestly misappropriates or suffers it to be applied contrary to such trust instead of discharging the trust. In criminal misappropriation there is no such relationship of trust and where the person entitled to the property is not traceable the property in question may be lawfully retained and used by the finder thereof as if such property were really his without being guilty of criminal misappropriation but any dishonest user contrary to the trust would amount to criminal breach of trust under any circumstances. (v) Theft is committed only in respect of movable property. There is a conflict of opinion on the point whether criminal breach of trust can be committed in respect of immovable property.

Section 405 which define criminal breach of trust, does not use any qualifyingexpression for the term “property” used therein. The Bombay High Court has held that the word “property” in this section refers only to movable property and immovable property is not meant thereby; hence a person could not be convicted of misappropriating the house of a deceased person. The Allahabad High Court has held that immovable property can also become the subject of criminal breach of trust. The Calcutta High Court has held that criminal breach of trust cannot be committed in respect of immovable property.

The Madras High Court has observed that the view of the Calcutta High Court, as expressed in this case, is based on the general assumption that if a person cannot move a thing away he cannot convert it to his own use and such assumption may be correct in the majority of cases but the language of Section 405 is very comprehensive and it is dangerous to lay down any absolute rule. Criminal misappropriation can, according to the language of Section 403, be committed only in respect of movable property. Dishonest intention is a common element of theft, criminal misappropriation and criminal breach of trust.


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