1. Shri P. Shankar, Respondent 2 herein, (hereinafter referred to as “the complainant”) filed a complaint in the Court of the Metropolitan Magistrate, New Delhi, alleging commission of offences under Sections 420, 336 and 338 of the Indian Penal Code by the three appellants and one Dr S.C Madan. The allegation made in the complaint is that the complainant's brother was to undergo a minor operation and for that purpose, he (the complainant) was looking for a good nursing home with adequate surgical facilities. He came across an advertisement of Appellant 1, of which Appellant 2 is a Director, wherein it was mentioned that it had all modern facilities and that all its rooms were air-conditioned. He, therefore, approached Appellant 2, who also confirmed that besides other facilities, air-conditioned rooms were available. Impressed by his statements, the complainant got his brother admitted for the necessary operation, but found, to his utter surprise, that the room that was provided to him was not air-conditioned, even though he was charged for such a room. The other allegations in the complaint are that Dr Madan did not perform the operation properly and that adequate post-operational facilities were not made available to the complainant's brother. The learned Magistrate dismissed the complaint on a finding that no offence under Section 420 IPC was made out and the complaint so far as it related to the other offences was barred by limitation under Section 468 CrPC. Aggrieved by such dismissal, the complainant moved the Court of Session in revision. At the time of hearing of the revision petition, the complainant withdrew his grievances against Dr Madan and confined his complaint against the nursing home authorities. The Additional Sessions Judge who heard the revision, allowed the same with the following findings:
“If air-conditioned room was in fact available, but could not be given for some defect then of course it would amount to a breach of contract but since the evidence has come that none of the rooms were air-conditioned in the said Nursing Home nor were provided to the petitioner, therefore, this concealment of the fact would amount to deception falling in the definition of cheating as defined under Section 415 IPC.”
2. Against the above order of the Additional Sessions Judge, the appellants moved the High Court, which upheld the order of the learned Additional Sessions Judge, but limited the enquiry into the offence under Section 420 IPC. The above order of the High Court is under challenge in this appeal.
3. We have carefully gone through the complaint, the documents annexed thereto and the deposition of the complainant. On a perusal thereof, we are unable to hold that a prima facie case under Section 420 IPC has been made out. From the judgments of the Additional Sessions Judge and the High Court, we find that both the learned courts have rested their findings on deception only and did not go into the question whether the complaint and its accompaniments disclosed the other essential ingredient of the offence under Section 420 IPC, namely, dishonest inducement. “Dishonesty” has been defined in Section 24 IPC to mean deliberate intention to cause wrongful gain or wrongful loss; and when with such intention, deception is practised and delivery of property is induced then the offence under Section 420 IPC can be said to have been committed. Judged in that context, we find that there are no materials from which it can be said even prima facie that the appellant “dishonestly induced” the complainant to part with his money.
4. We, therefore, allow this appeal and set aside the impugned order of the Additional Sessions Judge and the High Court and restore the order of the learned Magistrate dismissing the complaint.