Wrongful gain

Section 2(36) of the BNS defines wrongful gain as gain by unlawful means of property to which the person gaining is not legally entitled. Section 2(37) gives the mirror term: wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. Both reproduce Section 23 of the IPC (earlier). Section 447 of the Companies Act, 2013 adopts the same meaning for the offence of fraud.

Two elements must coexist: the means must be unlawful, and the person gaining must have no legal entitlement to the property. Section 2(38) widens the idea. A person gains wrongfully when he retains wrongfully as well as when he acquires wrongfully, and loses wrongfully when he is wrongfully kept out of property as well as when he is wrongfully deprived of it. So a refusal to return property that was lawfully received can amount to wrongful gain.

The term matters because it builds the word "dishonestly". Under Section 2(7) a person does a thing dishonestly when he does it with the intention of causing wrongful gain to one person or wrongful loss to another. Dishonest intention is the mental element of theft (Section 303), dishonest misappropriation (Section 314) and criminal breach of trust (Section 316). The definition speaks of intention, so the offence does not depend on an actual gain, and intending either the gain or the loss is enough. An owner can act dishonestly too: Illustration (k) to Section 303 shows that a man who takes back his own pawned watch without paying the debt commits theft, because he causes wrongful loss to the pawnee.

Distinguish "fraudulently" in Section 2(9), which means doing a thing with intent to defraud. Examiners usually test these definitions in match-the-following questions, the retention limb of Section 2(38), and the point that intention to cause either wrongful gain or wrongful loss is sufficient.