Requirements to constitute the offence u/s 405 I. P. C.

This criminal revision is at the instance of the accused against whom the respondent had filed a complaint alleging criminal breach of trust with respect to a motor pump and accessories which he had entrusted with the accused. The learned Magistrate discharged the accused, having found that the prosecution had failed to make out a case, which, if unrebutted, would end in conviction. However, the revisional Court reversed this finding of the learned Sub-Magistrate, and remanded the matter to the trial Court with a specific direction that a charge might be framed against the accused and the case be tried and the property be disposed of according to the result of the case. It may incidentally be noted that when the order of discharge was passed, the accused had filed an appeal before the District Magistrate questioning the propriety of the order passed by the learned Magistrate directing the property seized to be handed over to the complainant, and in reversal of the order passed by the learned Magistrate, the District Magistrate had passed an order directing that the property might be handed over to the accused. It was subsequent to that, revision against the order of discharge was filed and the learned District Magistrate was pleased to allow the revision.

2. In this revision the main question is whether an offence falling within the purview of criminal breach of trust has been made out. The facts to be stated are as follows: The accused who is the complainant’s brother’s son-in-law had received from the complainant his motor pump with its accessories for pumping out water for his cultivation during the agricultural season 1970-71 agreeing to pay a hire of Rs. 1,200 for that period. According to the complainant, this motor was to be returned to him after the season was over, but in violation of the condition of entrustment the accused did not return the motor on the expiry of the stipulated period. The complainant goes to the extent of saying that actually on inquiry being made, he came to know that the accused had disposed of the motor in favour of a co-operative society of which P.W.6 was the Secretary.

3. That the accused had received the motor on 7th September, 1970, is a fact which admits of no doubt. However, the defence has a case that the entrustment was not in the manner alleged by the , prosecution. According to the defence, a large sum of money was due from the complainant to the accused and it was for that reason that the accused was allowed to keep possession and make use of the motor.

4. Sri C. K. Sivasankara Panicker, the learned Counsel for the revision petitioner, contends that the learned District Magistrate had fallen into error in reversing the order of discharge that was passed by the learned Magistrate in a considered order. It is also argued that it was not open to the learned District Magistrate sitting in revision to pass an order directing the trial Court to frame a charge and to proceed with the trial. The further contention is that in any event, the learned District Magistrate who had earlier ordered the release of the motor in favour of the accused in revision could not have, in review of his own earlier order, passed an order directing that there may be a fresh order of disposal of the property according to the result of the case.

5. ‘Criminal breach of trust’ has been defined in section 405 of the Indian Penal Code as follows:

“Whenever, being in any manner entrusted with property, or with any dominion over property, dishonstly 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’.”

The ingredients of the offence are:

(1) There should be an entrustment by one person