JUDGMENT : AIKMAN, J.:— The applicant, Bishan Das, was convicted by a Magistrate of the first class of the offence of cheating and sentenced under the provisions of section 417 of the Penal Code, 1860 to pay a fine of Rs. 500 or in default to undergo 3 months rigorous imprisonment. The conviction was affirmed on appeal by the learned Sessions Judge, but the fine was reduced to one of 250 rupees. This Court is moved in the exercise of its revisional powers to set aside the conviction on the ground that the facts found are insufficient to establish a charge of cheating as defined in section 415 of the Penal Code, 1860. It appears that the applicant, Bishan Das, sold to the complainant, Babu Lal, certain landed property which Babu Lal discovered, had been previously mortgaged along with other property by his vendor, Bishan Das. The sale-deed does not state that the property sold is unencumbered, and it has not been found that Bishan Das actually deceived the complainant by representing to him or leading him to believe that the property was free from encumbrance. In my opinion the conviction cannot be supported. It is true that the explanation appended to section 415 lays down that a dishonest concealment of facts is a deception within the meaning of the section. If we turn to the definition of the word “dishonesty” to be found in section 24 of the Code, we find that a dishonest act is an act done with the intention of causing wrongful gain to one person or wrongful loss to another. Section 23 defines ‘wrongful gain’ as gain, by unlawful means, of property to which the person gaining is not legally entitled. Similarly a ‘wrongful loss’ is defined as the loss, by an unlawful means, of property to which the person losing is legally entitled. The unlawfulness of the means used is a necessary element in a criminal dishonesty. Now, in the present instance, I cannot find anything unlawful in the means used by the applicant. There was no obligation, cast on him by law, to disclose to his vendee the existence of the mortgage inasmuch as the mortgage ‘had been effected by a registered instrument, and the vendee could with ordinary care have ascertained its existence. 2. He might also have ascertained its existence by questioning his vendor. There was no obligation, cast on him by law, to disclose to his vendee the existence of the mortgage inasmuch as the mortgage ‘had been effected by a registered instrument, and the vendee could with ordinary care have ascertained its existence. 2. He might also have ascertained its existence by questioning his vendor. Had he done so and had the vendor falsely represented the property to be unencumbered, the case would have been very different as there would have been an actual misrepresentation by the vendor sufficient to constitute the offence of cheating. It might be thought at first sight that the illustration appended to section 415 is opposed to the view set forth above, but the case contemplated in that illustration is clearly distinguishable. The illustration referred to deals with the case of a person selling or mortgaging an estate which he has previously sold and conveyed away. In that case a person, who knows that he has got no right left to a property, deals with it as if he had, his conduct amounts to a representation that he had a subsisting right in the estate, although he well knows, that he has not. In the case before me, the seller still owned an interest, viz, the equity of redemption in the property which he conveyed to the complainant. For all that he knew to the contrary, the vendee might have been aware, at the time of his purchase, that the property, he bought, was under a mortgage. I have no hesitation in holding that the dishonest concealment of facts referred to in the Explanation to section 415, is a dishonest concealment of facts, which, it is the duty of the person concealing them, to disclose to the person with whom he is dealing. The Magistrate, in his judgment, argues that it is not necessary than wrongful gain or wrongful loss should have been caused, inasmuch as the conduct of the defendant, if not dishonest, was, at least, fraudulent. If the applicant refrained from disclosing, the existence of the encumbrance, his conduct might be immoral, but it would not, in my opinion, be fraudulent, any more than would the conduct of the seller of a horse, who knowing that the horse had a splint did not disclose the existence of the splint to a purchaser. If the applicant refrained from disclosing, the existence of the encumbrance, his conduct might be immoral, but it would not, in my opinion, be fraudulent, any more than would the conduct of the seller of a horse, who knowing that the horse had a splint did not disclose the existence of the splint to a purchaser. Of course, I refer to a case in which the vendor has not actively deceived the purchaser by representing the horse to be sound. Illustration (a) of section 17 of the Contract Act is as follows:— A sells, by auction, to B, a horse which A knows to be unsound. A says nothing to B, about the horse's soundness. This is not fraud of A. The same is the law in England. In the case of Horsfall v. Thomas, 31 L.J., Exch, 322, S.C. 1 H, and C., 90., BRAMWELL, J. says “The fraud must be committed by the affirmance of something, not true within the knowledge of the affirmer, or by the suppression of something, which is true and which it was his duty to make.” When there is a concealment of fact, I am of opinion, that there is neither fraud nor dishonesty, within the meaning of the criminal law, unless there is a duty imposed by law, as between the accused and the person with whom he is dealing to make that fact known. For the above reason I quash the conviction of the applicant, Bishan Das under section 417 of the Penal Code, 1860. The fine, if paid, must be refunded.