2.

Legal Analysis: -

a. Ingredients of this section: -

This section requires-

(1) Dishonest misappropriation or conversion of property for a person's own use.

(2) Such property must be movable.

S. 403 deals with the offence of dishonest misappropriation of property. It provides that
"whoever dishonestly misappropriates or converts to his own use any movable property", shall
be punished with imprisonment of either description for a term which may extend to 2 years or
with fine or both. The basic requirement for attracting the section are: (i) the movable property
in question should belong to a person other than the accused; (ii) the accused should wrongly
appropriate or convert such property to his own use; and (iii) there should be dishonest intention
on the part of the accused. Here again the basic requirement is that the subject matter of
dishonest misappropriation or conversion should be someone else's movable property' When
NEPC India owns/possesses the aircraft, it obviously cannot 'misappropriate or convert its own
use' such aircraft or parts thereof. Therefore S. 403 is also not attracted.' S. 403 uses the words
'dishonestly' and 'misappropriate'. These are necessary ingredients of an offence under S. 403,
IPC.

Dishonestly misappropriates or converts to his own use: -

There must be actual conversion of the thing misappropriated to the accused's own use. Where,
therefore, the accused found a thing, and merely retained it in his possession, he was acquitted
of this offence. Where the accused found a purse on the pavement of a temple in a crowded
gathering and put it in his pocket but was immediately after arrested, it was held that he was
not guilty of criminal misappropriation, for it could not be assumed that by the mere act of
picking up the purse or putting it in his pocket he intended to appropriate its contents to his
own use. Where a person took possession of a bullock which had strayed, but there was no
evidence that it was stolen property, and he dishonestly retained it, he could be convicted under
this section and not under S. 411. The accused purchased for one anna, from a child aged six
years, two pieces of cloth valued at fifteen annas which the child had taken from the house of
a third person. It was held that assuming that a charge of dishonest reception of property (S.
411) could not be sustained owing to the incapacity of the child to commit an offence, the
accused was guilty of criminal misappropriation, if he knew that the property belonged to the
child's guardian and dishonestly appropriated it to his own use. This section is in no way
restricted to appropriating property to one's own use. 1f a trustee repudiates the trust and asserts
that he holds the property on behalf of a person other than the one who entrusted him with it,
he has misappropriated the property just as much as he would have been said to misappropriate
it if he had been putting forward his own claims to it.

Any movable property: -

The misappropriation must be of movable property. A bull set at large in accordance with
Hindu religious usage is not 'property' of any one, and not the subject of ownership by any
person, as the original owner has surrendered all his rights as its proprietor, and has given the
beast its freedom to go whithersoever it chose. Such a bull cannot be the subject of criminal
misappropriation. The fact that such a bull receives some attention from the cow-herd of the
persons who set it at liberty and is not a total surrender by those who set it at liberty of all their
rights as proprietors. But where a person took possession of a bullock which had strayed, and
dishonestly retained it, it was held that he was guilty of criminal misappropriation.

The word "misappropriation" is in the illustrations and in the explanations to this section
replaced by the expression "appropriates to his own use", which seems equivalent to "setting
apart for his own use", to the exclusion of others. It does not, of course, follow from this that
setting apart by one person for the use of some person other than himself and the true owner is
not a misappropriation. A Hindu girl having picked up a gold necklet made it over to a sweeper
girl. The accused, the brother of the finder, represented to the latter that the necklet belonged
to a man of his acquaintance, and thus got possession of it from her. On enquiry by a police
constable a few hours later, he repeated the representation but afterwards gave up the necklet.
These representations were found to be untrue 8 the knowledge of the accused. It was held that
the accused was guilty of this offence.

Some cases under which criminal misappropriation of property can be termed: -

Joint Property: -

When the accused is interested in the property jointly with others, he is not necessarily guilty
of a criminal act if he takes possession of it, and disposes of it. No coparcener in a joint Hindu
Family having before a division a right in or to any specified share in any particular item of the
family property, a prosecution for dishonest misappropriation cannot lie against managing
coparcener until accounts have been taken and shares allotted.92 An owner of property, in
whichever way he uses his property and with whatever intention, will not be liable for
misappropriation and that would be so even if he is not the exclusive owner thereof. A partner
has undefined ownership along with the other partners over all the assets of the partnership. If
he chooses to use any of them for his own purposed he may be accountable civilly to the other
partners. But he doesnt thereby commit misappropriation.

Explanation 1.-

This Explanation refers only to cases in which there is a "dishonest misappropriation" and
explains that the section includes temporary as well as permanent misappropriation of that
description.

Explanation 2.-

There can be no criminal misappropriation of things which have

THEFT AND CRIMINAL MISAPPROPRIATION.-

(1) In theft the offender dishonestly takes property which is in the possession of a person
out of that person's possession and the offence is complete as soon as the offender
moves the property. Criminal misappropriation takes place even when the possession
has been innocently come by, but where, by a subsequent change of intention or from
the knowledge of some new fact, with which the party was not previously acquainted,
the retaining becomes wrongful and fraudulent.
(2) The dishonest intention to appropriate the property of another is common to theft and
to criminal misappropriation. But this intention, which in theft is sufficiently
manifested by a moving of property, must in criminal misappropriation be carried into
action by an actual misappropriation or coversion.