The law treats criminal breach of trust by a clerk or servant more severely than an ordinary criminal breach of trust. While section 381 punishes theft by a clerk or servant this section punishes criminal breach of trust on his part. Actual entrustment of property or dominion over property must be established irrespective of the fact as to whether he could be legally entrusted with the same or not. The provision is applicable to one who in fact is a clerk or servant or who is employed as a clerk or servant. The use of the words ‘in such capacity’ shows that this section is attracted only when the property or dominion over it is entrusted to a clerk or servant in his capacity as a clerk or servant.
If the same is not entrusted in such capacity, section 406 would not apply even if the offender be a clerk or servant. Where the appellant who had the dominion over funds of a society, the same having been entrusted to him, instructed the accountant to make a wrong cross entry, it was held that this could raise an inference of dishonest misappropriation by him. But, where the President and certain other members of a cooperative society were charged with criminal breach of trust of property kept in the store of the society on the ground that the keys of the store remained with the President during the night, it was held that the circumstances must be much more stronger to establish the charge. Where the accused persons who were the President and Secretary of a co-operative society were entrusted with dominion over money of the society dishonestly misappropriated the same, they would be held guilty under section 408 and not under section 409 of the Code. Entries made in account books with put proving the nature of business and mode of keeping account would not be sufficient to constitute entrustment. Where in a case under this section the charge of dishonest misappropriation was of a small amount but the trial had already taken fourteen long years, it was held that the imprisonment of three months could be reduced to that already undergone and a small fine.5 Where in a case under this the trial was quite long and the accused had a large family to support and his daughter’s marriage was also needed to be solemnised, imprisonment of two years was reduced to that already undergone.
The offence under section 408 is cognizable, non-bailable and compoundable when the value of the property does not exceed two hundred and fifty rupees and permission is given by the court trying the case, and is triable by magistrate of the first class.