Criminal Misappropriation OF Property PDF

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CRIMINAL MISAPPROPRIATION OF PROPERTY Friday, June 25, 2021

8:41 AM

1. Dishonest misappropriation of property - Section 403 - Whoever dishonestly misappropriate, 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. 2. What is misappropriation? - Sohan Lal: it was stated in this case, to mean setting apart, or assigning to a particular person or use, and to "misappropriate" means to set apart for or assign to the wrong person or a wrong use and this act must be done dishonestly. - Appropriate = setting apart - Misappropriate = setting apart to the wrong person or wrong use dishonestly. - For example, donated food items should be distributed to the flood victims. However, the accused wrongfully distribute the food items to non-flood victims, it was not for the wrongful use but only wrongful person - this is not an offence under misappropriation - Misappropriation is established when ie the food victims was sold instead of being distributed to the flood victims. The money gained from the sell was used by the accused. There is a clear wrongful use of the food items and the wrongful person is the accused - it should be the flood victims who can get the donated food items. - Property can be in any type - money etc

3. Conversion - In general is defined as an act in relation to the goods of a person, which constitute an unjustifiable denial of his title to them. - If denial is justifiable, then there is no conversion. - For example, the food items were sold. There is a conversion, however there is no longer conversion if the act of selling was done with the consent from the rightful owner which is the flood victims. If the flood victims derived their right to the food items, then there is no longer conversion since the act of selling was done with honesty. - Dishonesty is when the accused sold the food items without the consent from the rightful owner - the flood victims.

4. Dishonesty - A necessary ingredient in this offence.

CRIMINAL MISAPPROPRIATION OF PROPERTY Page 1

EXPLAINATION 1: SECTION 403 A dishonest misappropriation for a time only is a misappropriation within the meaning of this section.

AG V MENTHIS Mere taking of the property cannot be considered as a conversion because it may be a neutral act consistent with an innocent taking with a view to returning to the lawful owner - ie. The accused found some money and decided to find the lawful owner, however after some times, there is no one who came and claim the money, if the accused used that money after asking around, then it can be considered as an innocent taking and not a conversion. EXPLAINATION 2: SECTION 403 A person who finds property not in the possession of any other person, and takes such property for the purpose of protecting it for, or of restoring it to the owner, does not take or misappropriate it dishonestly, and is not guilty of an offence, but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has used reasonable means to discover and give notice to the owner, and he kept the property a reasonable time to enable the owner to claim it. What are reasonable means and what is a reasonable time in such a case is a question of fact.

The offence will be established if 1. appropriates it to his own use 2. The accused knows or still have ways to discover the lawful owner of the property. 3. He did not kept the property in a reasonable time to enable the owner to claim it.

For example, the accused wanted to use a car for his own use, firstly he need to discover who is the real owner, he can check the registration plate etc. After discovering the real owner, he need to wait for some reasonable time before appropriate the property. If the real owner did not claim the property after reasonable time, then the accused is not subject to the misappropriation of property dishonestly. PRESUMPTION:

SECTION 409B: 1. Where in any proceeding it is proved: - For any offence prescribed in Section 403 and 404, that any person had misappropriated any property/ conversion of property. - The public prosecutor has only the burden of prove the act of misappropriation or conversion of the property - the onus of proof for dishonesty lies on the defence. - There is a presumption that he had acted dishonestly until the contrary is proved. - If the prosecution had proved that there is a conversion or misappropriation of the property, the defence need to rebut the presumption that the act was done with dishonest intention. - The presumption benefits the prosecutor since they do not need to proof the dishonesty....