Mere concealment of facts, without any dishonest intention to cause wrongful gain or loss, does not amount to cheating under Section 415 of the Indian Penal Code.

Harmohinder Kaur Sandhu, J.

1. The brief, facts of the case giving rise to this appeal are that Mukhtiar Singh respondent was the owner of a house bearing No. 171 situated in Sector-20A, Chandigarh. He agreed to sell his house to Shri M.L. Goel for a sum of Rs. 78,000/- vide agreement Exhibit PA. Sale deed was to be executed upto May 21, 1977 and Mukhtiar Singh received a sum of Rs. 20,000/- as advance money. The balance amount was to be paid at the time of registration of the sale deed. When the agreement to sell was executed it was mentioned therein that the house which was to be sold was free from all encumbrances. The sale deed could not be executed by the fixed time. So, in continuation of the original agreement another agreement was executed on September 20, 1977 whereby the time for the execution of the sale deed was extended upto April 21, 1979, and Mukhtiar Singh received a further sum of Rs. 9000/-. Shri M.L. Goel alleged that although it was represented that the house to be sold was free from all encumbrances yet later on it was found that the house was under mortgage with one Swaran Kaur who had already obtained a decree for a sum of Rs. 47000/-. This fact was admitted by Mukhtiar Singh in the draft sale deed Exhibit PF and he agreed that the amount of Rs. 47000/- may be paid to the mortgagee. Shri M.L. Goel thus filed a complaint against Mukhtiar Singh for his prosecution under section 420 of the Indian Penal Code. He pleaded that had he known about the mortgage of the house earlier he would not have parted with an amount of Rs. 29,000/- nor he would have agreed to purchase the house. It was only on account of this false representation by Mukhtiar Singh that he agreed to purchase the house. The object of Mukhtiar Singh was to cheat him and his wife who was also a co-purchaser.

2. After recording preliminary evidence the learned trial Magistrate found that no case was made out against Mukhtiar Singh but in a revision in the High Court it was ordered that the Magistrate was to proceed according to law. Mukhtiar Singh was then tried for an offence under section 420 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for one year. Aggrieved by this judgment dated March 10, 1982, passed by Shri L.R. Roojam, Judicial Magistrate Ist Class, Chandigarh, Mukhtiar Singh filed an appeal which was accepted by Shri A.S. Garg, the learned Additional Sessions Judge, Chandigarh and Mukhtiar Singh respondent was acquitted. It is this judgment recording acquittal of the respondent dated 19-4-1992 which is assailed by Shri M.L. Goel, complainant by way of this appeal.

3. We have heard Shri Ravinder Chopra, Advocate with Mrs. Payal Kapoor, Advocate for the appellant and Shri A.K. Mittal, Advocate with Mr. G. S. Sandhawalia, Advocate for the respondent and have also carefully perused the record of the trial Court.

4. The learned counsel for the appellant referred to agreement Exhibit PA wherein it was specifically mentioned that the property to be sold was free from all sorts of encumbrances i.e. sale, gift, mortgage, will, claims etc and it was contended that on this assurance of the respondent the appellant and his wife agreed to purchase the house for a sum of Rs. 78,000/- and out of the sale consideration, paid an amount of Rs. 20000/- as earnest money. Later on the time for execution of the sale deed was extended and a further sum of Rs. 9000/- was paid to the respondent as part of the earnest money. In the month of March 1978, the appellant came to know that the house was already mortgaged with one Swaran Kaur for a sum of Rs. 37,500/- and this fact of mortgage was deliberately concealed by the respondent when the agreement to sell was executed. In fact Swaran Kaur had filed a suit for the recovery of mortgage loan and she had obtained a decree-against the respondent. If these facts had been disclosed by the respondent the appellant would not have entered into an agreement to purchase the property