Accused of Criminal Breach of Trust by Your Employer in Gurugram? What Section 316 BNS Means and What You Can Do

When an employee leaves a job on bad terms, or when accounts at a company do not add up, the employer sometimes goes to the police with a complaint of criminal breach of trust. The allegation is usually that company money, stock, a laptop, client data or cash collected from customers was kept or misused. For the employee, a call from the police station or a copy of an FIR can be frightening. This article explains what the offence actually means, what the police can and cannot do, and the lawful steps an accused employee in Gurugram can take.

What "criminal breach of trust" means

Criminal breach of trust is defined in Section 316 of the Bharatiya Nyaya Sanhita, 2023 (BNS) (formerly Sections 405 and 406 IPC). In simple terms, it requires two things:

1. Entrustment: property, or control over property, was handed to the accused; and
2. Dishonest misuse: the accused dishonestly misappropriated it, converted it to their own use, or used or disposed of it against the law or the terms on which it was given.

Both parts must be present. Simply having access to the company's money or goods is not enough, and a loss to the company is not enough. There must be a dishonest act by the person who was trusted with the property.

Why employees are treated more seriously

The BNS has graded punishments. The basic offence is punishable with imprisonment of up to five years, or fine, or both. Where the accused is a clerk or servant, that is, an employee, and the property was entrusted to them in that capacity, the punishment rises to imprisonment of up to seven years and fine under Section 316(4) BNS (formerly Section 408 IPC). A higher range applies to public servants and to those acting in the way of business as a banker, merchant, broker, attorney or agent.

The offence under Section 316(4) is cognizable (the police can register an FIR and investigate) and non-bailable (bail is at the court's discretion, not an automatic right). That said, because the maximum punishment is seven years, the protections in the BNSS about notice before arrest generally apply, as explained below.

Common situations in Gurugram workplaces

• A sales or collection executive is accused of not depositing cash received from customers
• An accountant is accused of making unauthorised transfers or inflating expenses
• A store or warehouse employee is accused of short stock or missing goods
• An employee who resigned has not returned a laptop, phone, vehicle or samples
• A manager is accused of taking client data or business to a new employer

Some of these can be criminal. Others are really disputes about final settlement, unpaid salary, unreturned assets or competition between businesses, which are civil or employment matters. Data and confidentiality issues may also involve other laws, such as the Information Technology Act, 2000, depending on the facts.

Criminal case or civil dispute?

As explained in our earlier article on when a money dispute becomes a criminal case, courts have repeatedly cautioned that criminal proceedings should not be used as a pressure tactic in what is essentially a civil dispute. Questions that often matter in employer complaints include:

• Was the specific money or property actually entrusted to this employee, or did several people have access?
• Is there an audit, ledger or record that shows a real shortfall, and who prepared it?
• Is the "missing" amount actually a disputed adjustment against salary, incentives, reimbursements or full and final settlement?
• Was the complaint made only after the employee resigned, demanded dues, or joined a competitor?
• Has the employee offered to return the asset, or has the employer refused to accept it?

None of these settles the matter on its own, but they are the kind of facts that investigators and courts look at.

What the police can and cannot do

Notice to appear

For offences punishable with imprisonment of up to seven years, the police are generally expected to issue a notice to appear under Section 35(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (formerly Section 41A CrPC) rather than arrest straight away. If you comply with the notice and cooperate, arrest is not to be made unless the officer records reasons that it is necessary. Ignoring the notice can lead to arrest.

Recovery is not the police's job

The police investigate offences; they are not a debt-collection agency. Pressure to "settle the amount at the station" or to sign a written admission should be treated with caution. Do not sign any statement or undertaking you have not read and understood.

Your documents and devices

If the police seize your phone or laptop during investigation, ask for a seizure memo listing what was taken. Keep a record of what was handed over and when.

Steps an accused employee can take

1. Get the FIR or complaint. In Haryana, a copy of most FIRs can be downloaded from the Haryana Police website. If only a complaint is pending, find out the police station and the officer dealing with it.
2. Preserve your records. Appointment letter, job description, emails assigning or withdrawing responsibilities, handover notes, deposit slips, payment receipts, chat messages, salary slips and your resignation and relieving correspondence.
3. Do not delete anything. Deleting emails or chats after a complaint can look like destroying evidence and may harm your case.
4. Return company property properly. If you genuinely hold a company asset, returning it against a written acknowledgement is usually sensible. It does not by itself admit any offence.
5. Respond to any police notice. Attend on the given date with copies of your documents, and give a clear, consistent account.
6. Consider anticipatory bail if arrest is feared. Because the offence is non-bailable, a person with a genuine fear of arrest can apply for anticipatory bail under Section 482 BNSS (formerly Section 438 CrPC), usually first before the Sessions Court in Gurugram.
7. Consider quashing if the case is really civil. Where the allegations, even if accepted, do not disclose an offence, or where the parties have genuinely settled, the Punjab and Haryana High Court can quash the FIR under Section 528 BNSS (formerly Section 482 CrPC). More on this on our FIR quashing page.

If you are the employer

An employer who has genuinely lost money or property through an employee's dishonesty is entitled to report it. A complaint is stronger and more likely to be taken seriously when it is supported by documents: proof of what was entrusted, an internal audit or reconciliation, and a clear timeline. Where the real issue is recovery of dues or return of assets, a civil remedy such as a legal notice or a recovery suit may need to run alongside or instead of a criminal complaint.

Employers should also note that the BNS itself treats an employer who deducts an employee's contribution to a provident fund or the Employees' State Insurance fund, and then fails to deposit it as required by law, as having dishonestly used that money for the purposes of this offence.

Frequently asked questions

Will I be arrested immediately?

Not necessarily. For an offence with a maximum of seven years, the usual first step is a notice to appear. Each case depends on its facts, and a person who fears arrest can seek anticipatory bail.

Can the matter be settled?

Many such disputes are settled once accounts are reconciled. A genuine settlement can be placed before the court, and in suitable cases the High Court can quash proceedings on the basis of a compromise.