Section 408 IPC - Criminal Breach of Trust by Clerk or Servant
Current legal position: Section 408 of the Indian Penal Code, 1860 dealt with criminal breach of trust by a clerk or servant. The corresponding provision under the Bharatiya Nyaya Sanhita, 2023 is Section 316(4), effective under the new criminal law regime from 1 July 2024. Both provide imprisonment of either description for up to seven years and liability to fine.
What is criminal breach of trust by a clerk or servant?
The offence concerns a clerk, servant or person employed in that capacity who is entrusted with property or has dominion over it because of the employment relationship and dishonestly misappropriates, converts, uses or disposes of the property contrary to the obligations governing that trust. The underlying definition of criminal breach of trust appears in Section 405 IPC and now Section 316(1) BNS.
Original statutory provision - Section 408 IPC
Whoever, being a clerk or servant or employed as a clerk or servant, and being in any manner entrusted in such capacity with property, or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Corresponding law - Section 316(4) BNS
Section 316(4) of the Bharatiya Nyaya Sanhita, 2023 provides punishment for criminal breach of trust committed by a clerk or servant, or a person employed in that capacity, in respect of property entrusted to that person in such capacity or over which the person has dominion. The punishment may extend to seven years of imprisonment of either description, and fine.
Essential ingredients
- Employment capacity: The accused was a clerk or servant, or employed in a comparable capacity.
- Entrustment or dominion: Property or control over it was entrusted to the accused in that capacity.
- Dishonest conduct: The accused dishonestly misappropriated, converted, used or disposed of that property, or wilfully permitted another to do so, in violation of a legal direction or contractual obligation governing the trust.
- Connection with entrusted property: The breach related to the property entrusted through that employment.
Entrustment means placing property or control over it in a person's care for a particular purpose. Dominion over property means authority or control over it even where the person does not own it. Dishonestly refers to an intention to cause wrongful gain or wrongful loss as defined by the applicable criminal law.
Punishment comparison
| Provision | Offence | Punishment |
|---|---|---|
| Section 408 IPC | Criminal breach of trust by clerk or servant | Imprisonment of either description up to 7 years and fine |
| Section 316(4) BNS | Corresponding offence by clerk or servant | Imprisonment of either description up to 7 years and fine |
| Section 406 IPC / Section 316(2) BNS | Ordinary criminal breach of trust | IPC: up to 3 years, or fine, or both; BNS: up to 5 years, or fine, or both |
Practical illustrations
Cash entrusted to an accounts clerk
An accounts clerk receives money from customers on behalf of an employer but intentionally transfers the receipts into a personal account. Where entrustment and dishonest diversion are established, the facts may amount to criminal breach of trust by a clerk.
Warehouse employee with access to inventory
An employee given control of stock for the employer dishonestly sells it and keeps the proceeds. The employee's entrusted control and dishonest disposal may satisfy the offence.
Accounting error without dishonest intention
A genuine clerical mistake or a disputed accounting entry, without proof of dishonest misappropriation or misuse of entrusted property, does not automatically establish criminal breach of trust.
Difference between Sections 406, 407 and 408 IPC
Section 406 IPC provides the general punishment; Section 407 IPC applies to carriers, wharfingers and warehouse-keepers; and Section 408 IPC applies specifically to clerks and servants. The BNS consolidates these categories within Section 316.
Which provision applies after 1 July 2024?
For acts committed from 1 July 2024, the corresponding BNS provision generally applies. Earlier alleged acts may continue to be assessed under the IPC, subject to repeal and saving provisions, including Section 358 BNS. The date and circumstances of the alleged offence must be examined.
Official statutory references
Read the authoritative legislation at India Code (Indian Penal Code, 1860, Sections 405 and 408; Bharatiya Nyaya Sanhita, 2023, Section 316) and official notifications at the Ministry of Home Affairs.
Frequently asked questions
Is every loss of an employer's property a Section 408 offence?
No. The prosecution must establish the relevant entrustment and dishonest breach; loss alone is insufficient.
What is the maximum imprisonment under Section 408 IPC?
Seven years of imprisonment of either description, along with liability to fine.
What is the corresponding BNS provision?
Section 316(4) of the Bharatiya Nyaya Sanhita, 2023.
Disclaimer: General legal information only. Statutory application depends on the date of the conduct and facts of the case.