Question

The principle is to be applied to the given facts and to choose the most appropriate option.

Principle: In criminal law, misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purposes, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility to care for and protect another's asset s. Embezzlement is misappropriation when the funds involved have b een lawfully entrusted to the embezzler. On the contrary, theft is the illegal taking of another person's property or services without that pers on's permission or consent with the intent to deprive the rightful owner of it.

Facts: A went for swimming at the Municipal Swimming Pool. A handed over all his valuables, including some cash to X, the guard on duty for safe custody, as notified by the Municipality. After swimming for an hour, A came out and searched for X. He found another guard on duty and that guard informed A that X had gone home after completing his shift and did not hand over anything to be given to A. A registered a complaint with the police. X was traced but he told the police that he sold all the valuables and the entire cash was used for drinking liquor. What offense, if any, was/were committed by X?

Options

• If at all X is liable, it is for criminal misappropriation only.

• X is liable for criminal misappropriation and embezzlement.

• X is not guilty of criminal misappropriation as he did not make any personal gain out of those items with him.

• X is liable for theft as he took A’s property without X’s permission

Answer 1

X is liable for criminal misappropriation and embezzlement.

Explanation:

According to Section 403 of the Indian Penal Code,  when an individual dishonestly converts another person's movable property to his own, there is misappropriation of property. According to the given facts,  X had the responsibility to care and protect valuables and cash of A. X dishonestly misappropriates and sells  A's possessions and uses the cash to drink liquor.  (Narayan Singh v. State of MP [1986 CrLJ 1481])   
X will also be held under Embezzlement because of A lawfully entrusted his property i.e. the valuables and cash in the possession of X which were misappropriated by  X.   
X will not be held under theft because A himself handed over his property (valuables and cash) to X and thus there was implied consent of A.