It must be an acquisition or retention with the intention of appropriation. For example, in a certain case the accused, a pledge of a turban, was convicted of criminal breach of trust for using it, the court set aside the conviction on the ground that the wrongful beneficial use of property by him, was not a gain to him, nor was it a wrongful loss to the real owner.
Ingredients of Wrongful Gain:
(i) There must be gain of some property;
(ii) Gain must be by unlawful means;
(iii) Person gaining must not be legally entitled to that property;
Section 23: Wrongful Loss:
“Wrongful loss” is the loss by unlawful means of property to which the person losing it is legally entitled.
Wrongful loss is constituted not only by wrongful deprivation of property, but also by being wrongfully kept out of the same.
Ingredients of Wrongful Loss:
In order that the loss becomes wrongful, two essential qualifications have been imposed—
(i) The loss of the property must be caused by unlawful means; and
(ii) The person losing must be legally entitled to such property; in other words, he must have some legal right in that property.
One R was in debt to the accused. The accused proceeded to compel liquidation of the debt by taking away from R’s house in his absence and without R’s consent, a cart and four bullocks belonging to R. He intended to hold them apparently until the debt was paid, as it was not proved or suggested that the accused intended permanently to deprive R of the property. On these facts, the High Court held that the property was wrongfully taken and an offence of theft is clearly proved.
Thus, for either wrongful loss or gain, the property must be a loss to the owner, or the owner must be wrongfully kept out of it. So where a person maliciously impounded another’s cattle with a view to cause him expense, inconvenience and annoyance, there being neither wrongful gain nor wrongful loss of the property, he could not be convicted of theft.
In a certain case the court remarked: Of course, when the owner is kept out of possession with the object of depriving him of the benefit, arising from the possession even temporarily, the case will come within the definition. But where the owner is kept out of possession temporarily, not with any such intention but only with the object of causing him trouble in the sense of mental anxiety, and with the ultimate intention of restoring the thing to him without exacting or expecting any recompense, it is difficult to say that the detention amounts to causing wrongful loss in any sense. However, it is not a case in which ‘intention’ must be distinguished from “motive”.
In an important case Madras High Court held that the accused is guilty of wrongful loss where he has demolished a construction standing beside a public road without any reason.
A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
The words “gaining wrongfully” or ‘losing wrongfully’ need not be confined only to the actual acquisition or actual deprivation of property and would cover also cases of wrongful retention of property in one case and wrongfully being kept out of property in the other.