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Section 409 IPC

IPC Section 409 - Criminal Breach of trust by public servant, or by banker, merchant, or agent.

As provided under the Code, Section 409 IPC reads as, “Whoever being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

Sec 409 IPC talks about the act of criminal breach of trust committed by any public servant, or any person who was entrusted with a person’s property. 

Section 409 of the Indian Penal Code is attracted when the offence is committed by a public banker, banker, merchant, factor (a person who does business for another) attorney or an agent. The mentioned categories of the persons are expected to discharge their duties honestly and any departure or any kind of disparity from the norm leads to severe punishment.

To hold a person guilty under this section, the following facts must be proved:

  1. The accused was a public servant, or merchant, or broker, or an attorney or an agent
  2. The accused was entrusted with the property
  3. The accused committed a criminal breach of trust in respect of the property entrusted.

For the purpose of this section, the term ‘Public Servant’ means the same as defined under section 21 IPC.

 

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For a better understanding of Sec 409 Indian Penal Code, we can state a few instances as well.

  • Say, if a cashier was in possession of the iron safe with all its three keys, for which two were meant for the outer door and one for the inner drawer, and being on the safe side, duplicate keys were also kept.

In this situation, the cashier must be held under a duty to account for the safe including the case and say, if the cash was stolen or used misappropriately, he must be held liable for extracting the money from the safe.
If in the absence of evidence, he fails to prove his innocence, he would be held guilty under IPC 409.

Apart from the illustration, mere failure or omission to return the property is not sufficient to constitute an offence under this section. 
This principle was held by the Supreme Could in the case of ‘Sardar Singh vs. State of Haryana’ and ‘K.K. Dalmia vs. Delhi Administration’.

Section 409 IPC covers dishonest misappropriation in cases where the receipt of the property is by a fraudulent or by improper means and also those where a public servant misappropriated. It is not necessary or possible to prove in what manner the accused had dealt with the appropriated goods.
In this situation, the onus lies on the prosecution to prove the charge against the accused. In cases, where the entrustment is proved, in those cases, the prosecution would have to rely on the trust or falsity of the explanation given by the accused.

All that is required is what may be described as entrustment or we can also say the acquisition of possession over the property in the capacity of a public servant. This was held in the case of ‘Vishwa Nath vs. State of Jammu Kashmir’ where the accused was a head constable and was charged for committing an offence under IPC section 409. The facts of the case are that there was embezzlement of the  Government money by the accused of his own personal use.

From the above-stated facts and explanation, it is clear that the section requires is more than a failure or omission to return the property. Section 409 IPC is a Cognizable and non-bailable offence, triable by a Magistrate of the first class. 
The person guilty becomes liable to the punishment of imprisonment which can be simple or rigorous for a term of up to 10 years along with fine.



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