Criminal Defenses & Grounds of Bail in cases of Criminal Breach of Trust: Best Criminal Lawyer Advice

“Criminal breach of trust is a non-bailable offense under IPC. Having said that, there are different criminal defenses available to the alleged accused in cases of criminal breach of trust. Further, there are numerous grounds to obtain bail in a case for criminal breach of trust and they play a key role or deciding factor before the Courts. Top ten criminal defenses and grounds for bail in a case for criminal breach of trust are discussed here in detail.”

Criminal Breach of Trust is an offence punishable under Section 406 of Indian Penal Code,1860. It is a Non-bailable and Cognizable offence. As it is a non-bailable offence, courts have the discretion to grant bail to the accused or not. Section 437 of Code of Criminal Procedure,1973 mentions the condition when bail can be granted in cases of non-bailable offences. Thus, in case of offence of Criminal Breach of Trust an accused can file an application for grant of bail and provide the arguments about the grounds on which the bail is sought and after that if the magistrate is satisfied with the grounds, bail might be granted. Under Section 438 of Code of Criminal Procedure,1973, an Anticipatory Bail in case of Breach of Criminal Trust could also be sought.

Top Ten Criminal Defenses & Grounds for Bail in Cases of Criminal Breach of Trust: Best Criminal Lawyer Advice

1. To make it a Civil Wrong- The offence of Criminal Breach of Trust contained in Section 405 of Indian Penal Code, 1860 enumerates some essential ingredients. One of them is “Entrustment”. The accused can make it as grounds for bail that in order to attract the penal provision of Section 405 of Indian Penal Code, the entrustment of money or property is necessary and the ingredient of entrustment is not present in his or her case so no criminal liability arises. A mere breach of agreement/promise/contract does not constitute the offence of Criminal Breach of Trust without there being a clear case of Entrustment. The accused can argue that the petitioners are just trying to bring monetary dispute within the ambit of criminal laws to pressurize the accused and the dispute is purely civil in nature.
2. Alleged Misappropriated Amount has been Recovered before filing of FIR– The accused can make this as ground for bail in his/her case that the misappropriated amount has already been recovered before the filing of FIR. There is no need to put the accused in judicial custody as the amount has already been recovered and the accused cannot abscond or flee away with the alleged misappropriated amount. Cases where huge amounts of money have been misappropriated and the said amount is not recovered there are more chances of the accused fleeing away with the money. So, the court does not grant bail in these cases but in cases where the alleged misappropriated amount has already been recovered and the court knows that the accused cannot abscond with the alleged misappropriated amount. This could be a reasonable ground for bail.
3. Relevancy of Books of Account and Financial Transaction- In order to attract the penal provision of Criminal Breach of Trust, it is necessary to show the ingredient of ‘dishonest misappropriation of entrusted property’. If the alleged property or amount is misappropriated by the accused to his own use then there must be some evidence to prove it like Books of Account or any Financial transaction. If there is not any proof to show the misappropriation of property by the accused to his own use, the accused can make it as grounds for bail that the essential ingredient of dishonest misappropriation of property to his own use is not fulfilled and hence the accused should be released on bail.
4. The Quantum of Amount Misappropriated is Proportionally less- The quantum of amount misappropriated can be a ground for bail in case of offence of criminal breach of trust. The accused can argue for grant of bail on the ground that the amount misappropriated is not a lot or misappropriated property is not much in value so, it would not be proportionate to keep the accused in the judicial custody till the trial is not completed or he/she is found not guilty.
5. Offence not being of Highest Magnitude and Prescribing Severest Punishment- Before granting bail the court keeps in mind some factors to decide whether to grant bail to the accused or not. Two of them are: Gravity of offence and Severity of Punishment. The accused in case of Criminal Breach of Trust can make it as a ground for bail that the offence committed is not of highest magnitude and prescribing severest punishment. The Supreme Court in its previous judgments have clearly pointed out that there is no need for arrest in cases where the offence is not of highest magnitude and prescribes severest punishment. Section 406 of IPC prescribes the punishment for imprisonment that may extend to three years or fine or both and even in aggravated form the punishment for imprisonment may extend to ten years and fine and this is not the severest punishment. So, the accused can be granted bail on this account.
6. Crime Against property is not that of Grave Nature- The offence of criminal breach of trust is crime against property as categorized in Indian Penal Code,1860. It is not the offence that is grave in nature and besides this the accused can also argue that as he/she is not accused of crime against person, so the accused can also not be apprehended as threat against the society so, there is no need of judicial custody and the accused should be granted bail.
7. False Accusations to Humiliate the Applicant by Arresting him/her- In cases where there is no reasonable ground to believe that the accused have committed the offence and the case is not prima facie, the best defense in favour of the accused is to deny the charges and make the court believe that the allegations are false and made only with the object of injuring or humiliating the applicant by arresting him or her. So, till the accused is not found guilty he/she should be released on bail.
8. The Burden of Proof is on Prosecution to prove the Accused is Guilty- In Indian criminal justice system, the burden of proof lies on the prosecutor to prove that the accused is guilty and the innocence of the accused is presumed till the conviction, same apply in case of offence of Criminal Breach of Trust too. It is not the accused who have to prove his innocence rather it is the prosecution who have to prove that the accused is guilty. This could be used as grounds for bail that till the accused is found guilty, he is presumed to be innocent and besides this the burden of proof lies on the prosecutor. So, the accused should be granted bail.
9. Age and Health of the Accused- In most of the bail cases, the court considers the age and health of the accused as ground for bail. The accused can make his/her medical condition or old age as a ground to be granted bail. If the court found the medical condition of the accused not fine then the court might consider granting the bail.
10. The protracted nature of the Criminal Trial- When the nature of trial is protracted then, the accused can plea the court to release the accused on bail as it would cause unnecessary hardship to the accused till his/her acquittal and bail should be granted where the punishment for the offence charged is likely to be less than the time it takes for the case to be heard in court and not only that it would also put unnecessary burden on state to keep the accused.

 

Cases Laws on Grant of Bail in Cases of Criminal Breach of Trust
Anand Kumar Mohatta v. State (NCT of Delhi) [(2019)11 SCC 706]: The Hon’ble Supreme Court in this case held that the mere breach of contract does not amount to criminal breach of trust. The element of ‘entrustment’ of property must be present in the case and if it is not there then, it would not amount to criminal breach of trust.

Court on its own motion v. Central Bureau of Investigation [(2004) 109 DLT 494]: The Hon’ble Delhi High Court gave the instruction that the application of bail shall not be refused unless the offence is of highest magnitude and prescribing severest punishment.

Milan Anandan v. State of U.P. [(2005) 53 ACC 879]- In this case Hon’ble High Court held that the liability under Criminal Breach of Trust arises when there is a clear case of entrustment or dominion over property. If not, then it would not amount to an offence of criminal breach of trust.

The offence of Criminal Breach of Trust has some essential ingredients and if the accused proves that one of the ingredients is not fulfilled, the offence committed would not attract the penal provision under section 406, Indian Penal Code, 1860. This offence does not prescribe the severest punishment and is an offence against the property. Further, the court also considers the medical condition of the accused and age of the accused before granting bail. So, the bail can be sought on these grounds easily.
Authored By: Adv. Anant Sharma & Anjali Swami