Legal provisions regarding Criminal breach of trust by clerk or servant under section 408 of Indian Penal Code, 1860.
Section 408 punishes a clerk or a servant for criminal breach of trust regarding the property entrusted to them in the capacity of a clerk or servant whereas Section 381 punishes a clerk or servant for theft.
A ‘clerk’ means a person who does a white collar job for writing purposes. He is a writer in an office, public or private, either for keeping accounts or entering minutes.
ADVERTISEMENTS:
A ‘servant’ is one who is employed to render personal service to his employer, otherwise than in the pursuit of an independent calling, and who in such service remains entirely under the control and direction of the latter, which is called his master.
A servant acts under the direct control and supervision of the master and is bound to conform to all reasonable orders given in the course of his work. An agent is not a servant though he works under his principal.
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The points requiring proof under Section 408 are
ADVERTISEMENTS:
(i) That the accused was a clerk or servant, or was employed as such;
(ii) That as such he was entrusted with the property in question with dominion over it;
(iii) That he committed criminal breach of trust in respect of it.
If a person acts as a clerk or servant although there is no contract binding on him to work, yet, so long as he does the duties he will come under the category of a clerk or a servant.
ADVERTISEMENTS:
Where a servant fails to render accounts and to deliver up the monies realised by him in spite of repeated demands, and uses the property entrusted to him in violation of the legal contract made by him with his master and is thus guilty of an offence of breach of trust under Section 408.
Where an estate clerk fails to account for money which came into his possession on behalf of the estate he is criminally liable under Section 408 and also liable under civil law to his master.
In Kalka Prasad v. State [AIR 1959 All 698], the applicant, who was a minor, was entrusted with dominion over the money and regardless of the question whether he could legally be entrusted or not, he renderd himself liable when he misappropriated it dishonestly.
In Citing Lal Ram v. State [1988 Chand CrC 446], the accused was a branch manager of a transport company. He delivered a consignment to the co-accused on his promise to deposit consignee copy in spite of specific instructions from the head office not to deliver the consignment without receiving the consignee copy. It was held that the conduct of the accused was prima facie dishonest and he was properly convicted under Section 408.
In R. V. Ram Dhun Day [13 W R 77], the head clerk in a Government office was entrusted with certain stamps for custody and he made them over to the Nazir, who misappropriated them, it was held that whether his custody of the stamps was legal was immaterial so long as it was qua Nazar since Section 408 does not limit the mode in which a trust should arise, whether by specific order or by reason of its being a part of the proper duty of a public functionary. He was, therefore, held liable as much under Section 408 as under Section 409.
In Netranandu Sahu v. State of Orissa [1993 CrLJ 1272 (Ori)], the accused was the secretary of a cooperative society. He was entrusted with various consumer articles for the purpose of sale to different societies. He could not account for the shortage of the articles worth about one lakh rupees.
However, conversion of the articles or value thereof for his own use and with dishonest intention was not established. Physical verification of stock at any time was not proved and thus accused was not given an opportunity to explain the shortage of stock. In such circumstances conviction of the accused under Section 408 was set aside.
The offence under Section 408 is cognizable and warrant should, ordinarily, issue in the first instance. It is non-bailable and non- compoundable except when the value of the property does not exceed Rs. 250, in which case, it is compoundable with the permission of the court and is triable by a Magistrate of the first class.