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Criminal Breach of Trust

Criminal Breach of Trust (CBT) and Criminal Misappropriation (CMA) both require dishonest intention. CBT requires an entrustment or dominion over property, while CMA does not have a precondition and only applies to moveable property. For CBT, the actus reus is misappropriating, converting to own use, using or disposing of property in breach of directions or contract. For CMA, the actus reus is misappropriating or converting moveable property to one's own use. Both require the mens rea of acting dishonestly as defined in Sections 23 and 24 of the Penal Code.

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55 views3 pages

Criminal Breach of Trust

Criminal Breach of Trust (CBT) and Criminal Misappropriation (CMA) both require dishonest intention. CBT requires an entrustment or dominion over property, while CMA does not have a precondition and only applies to moveable property. For CBT, the actus reus is misappropriating, converting to own use, using or disposing of property in breach of directions or contract. For CMA, the actus reus is misappropriating or converting moveable property to one's own use. Both require the mens rea of acting dishonestly as defined in Sections 23 and 24 of the Penal Code.

Uploaded by

Nadia Yusoff
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Criminal Breach of Trust (CBT) and Criminal Misappropriation (CMA)

CBT CMA

-Both require dishonest intention as its mens rea

-Both are offences affecting property

Require pre condition: No pre condition

1)Entrustment or dominion over property

APPLICABLE TO ALL TYPE OF PROPERTY Only confined to moveable property

a/r is one of the act provided in S405 A/R moving the proerty for the purpose of aking it

CBT

S405 - Illustrations and Explanation


Whoever, being in any manner entrusted with property, or with any dominion over property either
solely or jointly with any other person dishonestly misappropriates, or converts to his own use, that
property, or dishonestly uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust, or wilfully suffers any other person
so to do, commits “criminal breach of trust”.

Actus reus:

1. Have pre requisite condition i.e IN ANY MANNER have entrustment or dominion over the
property.
-Important to know the power or jurisdiction of the accused with regards to property.
- IN ANY MANNER:
a) Meaning there is no need for specific trust to be established between both parties.
b) Also mean that here may be liability for CBT where the entrustment has taken place in the
course of an illegal transaction

Case: R v Tan Ah Seng


-Respondent received 40$ for the purpose of renting house for prostitutes but use it for
other means. Was acquited in first instance.
-Held: Court held liable for CBT because he misappropriated t

- ENTRUSTMENT:
a) Meaning – Handling over the possession of property for some purpose which may not
imply the conferring of the proprietary right. OR A confidence placed by one man in another
and must be voluntarily and freely.

b) If confidence obtained by playing tricks, not a valid entrustment

c) To constitute the offence, must have dishonest missrep by a person who was trusted of
the property, which the breach of trust is charged

Case: Pushpa Kumar v State of Sikkim


- Acc a conducter of a bus belong to Sikkim. He collected the bus fare and freight charges
more than Rs 2000. He then did not give the money to the transport authorities.
- Held: In entrustment, the CBT that is alleged must be handed over by the grieved person i.e
complainant who is the owner to the accused. In this casek no entrustment as the money is
not given by anyone at Sikkim to the accused. (He received money from the passengers.

X Supreme Court in the case of Nath v State of Rajasthan


- A person entrusted to collect money onbehalf of another is said toe be entrusted with the
money given to him.

Kenny: Trust is when the acc will be put in position to take care and handle the property for
the benefit of the complainant.

Case: Gan Beng v PP


- Borrowed the bicycle and failed to return it after 2 hours as promised. Charged and
convicted for CBT.
Case: Chin Wah V PP
- Borrowed necklace from complainant and later mortgaged it. Liable for CBT as the element
of misapprotiation existed.

Rajindra Singh
App asked the necklace from a goldsmith bcs want to make a copy and did not return it
back. Was convicted for CMA instead of CBT because no entrustment. Been lend but not
trust.

- DOMINION:
a) Meaning – Have dominion over property when her supervises OR excise control over the
property OR is in charge if the property.

b) Diff between entrusted and dominion: Will be liable for the property if found missing
without any proof // Only will be liable if he misappropriated the property.

Case: Sinnathamby v PP
- An employee for PWDQ, received 10$ from a contractor in return for leaving some stone
wich then was removed.
- On appeal, was guilty for CBT bcs in poition to exercise dominion.
Case: Chang Lee Swee
- He was a Executive Director and in charge if coompany’s financial. He transferred 390K$ to
another company that he was also a board.
-Not CBT because he has not given any power to lend any money others company. Not
entrusted nor have dominion.

5 Actus Reus:
a) Misappropriate
- mere retention of goods by a person without misappropriation does not amount to CBT
Case: Murni Hj Mohamed Tahir
- App entrusted with money and was to use cheques issued by Treasury to pay serving
soldiers . Discrepencies was revealed.
-Issue: Whether he has used or disposed the property in violation to law?
-Not violated any term of law but violated a term of his contract wth Gov. This case was
misappropriation of propert together with conversion of property to one own use.

Case: Chin Wah V PP


- Borrowed necklace from complainant and later mortgaged it. Liable for CBT as the element
of misapprotiation existed.

b) Converts to his own use


c) Uses the property in violation to law
D) disposedthe property in violation to law
e) Suffers any other person to do so (wilfully)

Mens rea:
1) Dishonesty – cross refer to S23 and S24
-S24: With intention to cause wrongfully gain of a person or wrongfully loss to a person.
-S23: Wrongful gain = Unlawful means of property to which the person gaining it is not legally
entitled // Wringful lost = unlawful means of property in which the person losing it is legally entitled
Sathiadas v PP = The fact that the money entrusted to be used for another particular puposes, justif
the inference the appellant had dishonesty misappropriate intention.

2) Willfully - The act constituting CBT has been done deliberately or intentionally and not bya ccdent
or inadvertence
CBT of Partnership
1) In India court has not been prepaed for it
2) Local court however clear that partners can be liable for CBT
Punishment S466 – 10 years imprisonment, whipping and shall be liable to fine. Aggravated: 408/409

CMA S403
Whoever dishonestly misappropriates, or converts to his own use, or causes any other person to
dispose of, any property, shall be punished with imprisonment for a term which shall not be less
than six months and not more than five years and with whipping and shall also be liable to fine.

Actus reus: Misappropriation or conversion of property for a person’s own use


Mens rea: Dishonestly

1) Essence: Some property belonging to another in which comes into possession of the accused
innocently, is misappropriated and converted to his own use.
2) Setting apart for one’s own use. / Conversion to one’s own use
3) Property comes into possession of the offender by some casualties or any way i.e accident
etc , no such contractual relationship btw parties
4) Mere retaining =/= CMA
5) Not need to be permanently, enough be even for a time
6) Aggravated: S404

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