Introduction
Omani Penal Code No. 7/2018 regulates the breach of trust crime provisions in Articles 360 to 363, and the crime is one seven rimes against the property provided for by law in part eleven, chapter four. Under article 25 of the Penal Code, the breach of trust crime is a misdemeanor because the penalty of imprisonment is not more than three years. The law aims to punish the trustee for breaking the honesty, which could be committed either by seizing or concealing or destroying the money received by the trustee to benefit himself or others or even harm the owner of the money. Below we will cover the following topics:
- Elements of the crime of Breach of trust.
- Procedures for filing a breach of trust complain.
- Punishment.
Elements of the crime of Breach of trust
The law requires three elements for the commission of the crime, which are:
- Delivery of funds to the trustee
Article (360) of the Penal Code reads as follows:.
" Article 360
Whoever is handed money, or any other movable property, as a loan,
deposit, in agency, lease, mortgage, or is entrusted with it in any
manner, and proceeds to conceal, deny, embezzle, dissipate, or
destroy it, shall be punished by imprisonment for a period no less
than (3) three months, and not exceeding (3) three years, and a
fine no less than (300) three hundred Rial Omani and not exceeding
(1,000) one thousand Rial Omani, or one of those two
punishments.'
It is understood from the article that this element requires:
1.1 The existence of money or movable money
The definition of money does not raise a practical difficulty, but identifying the movable property presents some issues when applying the Penal Code. However, the comprehensive meaning of the movable property must be considered, so it includes any right regardless of its value. As a result, the immovable properties allocated by the owner to serve and utilize for those properties, such as machinery designated to operate factories, could be determined as movable property. Therefore, if the trustee abuses the trust in such properties by any conducts mentioned in Article 360, the crime of breach of trust is established. In the case No. 522 of 39, the Egyptian Court of Cassation upheld the lower court's ruling convicting the tenant of the crime of dishonesty for acting in the furniture of the rented and leased property.
The requirement of money or movable property follows that the crime is not achieved if innovations or classifications are seized or disposed of. For example, suppose a person confers in an invention or discovery, selling or disclosing it to others. In that case, he or she is not charged with the breach of trust, even although this may constitute another offence under the Copyright and Neighboring Rights Act.
2.2 Handing over money to the accused
The trustee must receive the money, or the movable property based on one of the contracts mentioned in Article 360, and such contracts are loan, deposit, the agency, lease, mortgage. Unlike the old Penal Code, the current code cited those contracts only as an example of trust contracts.
Delivering the money to the trustee is not necessary to be actual always; therefore, the owner may hand over the money to the trustee differently, such as the manager in a company who authorize to run the bank account or sign on behalf of the company with a third party, and in fact, most cases of breach of trust are committed by these people.
However, it is conditioned that the money must be handed over to the trustee to preserve or use it for a specific purpose and then return it to its owner.
In Case No. 2828/2000, the Supreme Court held that the trustee is acquittal because the element of handing over the money to him was not fulfilled. The court explained that the money handed over to the trustee under the agency and disposed of it without carrying out the agency's duties does not constitute a crime of breach of trust as he utilized money delivered to him as an owner and not as a trustee. The same principle was determined by the Egyptian Court of Cassation in Appeal No. 32750 of 73. The Egyptian Court added that the trustee's failure to implement the obligations arising from the agency contract is a civil matter that does not constitute a crime.
Also, suppose the borrower refuses to return the money or does not pay the instalments. In that case, the crime is not established because the money was not delivered according to a trusted contract as required by Article 360.
- The trustee conceal, deny, embezzle, dissipate, or destroying money
Article (360) specifies the criminal acts that constitute the material element of the crime of breach of trust. A fundamental idea that combines those acts is that the trustee disposes of the money as the owner and not as a trustee.
In cases No 186 and 187/2003, the Supreme Court held that the crime of breach of trust is completed by any act indicating that the entrusted person considers the money as his property and disposes of it based on that capacity.
- Criminal Intention
Any conduct by the trustee in the money as an owner to achieve a benefit for him or a third party or even to harm the owner of the money is sufficient to prove the criminal intent.
The Egyptian Court of Cassation determined in case No. 1220 of 54 and case No. 5191 of 55 that if the trustee late in returning the money or refuses to pay it, the criminal intent does not establish in the crime of breach of trust unless it is accompanied by the trustee's intention to add the money he receives to his possession and embezzlement for himself.
It is noteworthy that if the trustee pays the amount after all the elements of the crime have been verified, the criminal responsibility remains and would not fall. Still, it may be a reason to reduce the penalty.
Procedures for filing a breach of trust complain
The procedures begin with filing a complaint by the owner or his private attorney versus the trustee. Article 363 of the Penal Code and Article 5/A of the Code of Criminal Procedure No. 97/1999 requires filing the complaint within three months from the date of knowledge of the occurrence of the crime and the person who committed it.
Article 363 reads as follows:
"The penalties set out in this Chapter shall be doubled for one time or more if there are several victims. Prosecution in the crimes set out in this Chapter shall be instituted at the complaint of the victim. The lawsuit shall lapse, and the execution of the judgment shall be stayed by waiver. In all cases, the criminal shall be required to return the things held or concealed by him."
Article 5/A reads as follows:
"Public action shall only be brought by:
1- On the basis of a verbal or written complaint of the victim or his private attorney-at-law in offences in which the law lays down such a condition. A complaint shall not be accepted after the lapse of three
months as of the victim's knowledge of the offense and its perpetrator, unless otherwise provided by law."
A complaint or request must also be submitted to the Public Prosecutor, or a judicial enforcement officer based on an article (6) of the Code of Criminal Procedure which reads: "A complaint or request shall be submitted to the Public Prosecutor or a judicial enforcement officer, and investigation proceedings may be taken only after the complaint, request or authorization has been issued." It follows from the above that the prosecution cannot initiate proceedings for the investigation of acts constituting the breach of trust without a complaint from the victim.
Punishment
Based on Article 360, the judge may sentence the trustee to be imprisoned for a period of no less than (3) three months and not exceeding (3) three years, in addition to a fine of no less than (300) three hundred Omani riyals and not more than (1,000) one thousand Omani riyals. The judge may pass only one of these two penalties. In all cases, the trustee must return the money he acquired or concealed to the victim.
Originally published November 23, 2023.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
