JUDGMENT : The petitioner is aggrieved of the order dated 05.07.2014 by which the court has taken cognizance of the offence under Section 406/417 IPC and issued summons to the petitioner. 2. Stand taken by the petitioner is that ingredients of the offence punishable under Section 406/417 IPC are not made out; on the allegation of breach of the agreement the petitioner cannot be prosecuted in a criminal case. 3. Briefly stated, C.P. Case No. 2073 of 2013 has been instituted by the complainant- Radha Mohan Mahto alleging that the accused who is a builder on the pretext of constructing a multiplex building in the name of M/s Ashis Kiran Construction approached him whereupon he agreed to purchase a flat, for which an agreement was executed on 15.09.2009. The complainant has asserted that he paid Rs. 8,00,000/- by cash and cheque and subsequently he has paid Rs. 5,30,000/-. However, in solemn affirmation the complainant has spoken further payment of Rs.1,50,000/- only. The enquiry witnesses have also supported the allegation made by the complainant. There is specific allegation that the petitioner on account of rise in the price did not want to sale the flat to the complainant and he has fraudulently refused to return the money. In “Onkar Nath Mishra and Others Vs. State (NCT of Delhi) and Another” reported in (2008) 2 SCC 561 , the Supreme Court has indicated when an offence of the criminal breach of trust can be said to be made out, thus; “16. According to Section 405 IPC, the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. 10. …. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. 10. …. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created.” 4. The specific allegations made in the complaint and by the enquiry witnesses make out a prima-facie case under Section 406/417 IPC. 5. The learned counsel for the petitioner submits that true facts were not disclosed by the complainant in the complaint petition and it is a fact that it was the complainant who has failed to pay the balance amount due to which a legal notice was issued by the petitioner to the complainant. 6. By now it is well-accepted that at the stage of section 202 Cr.P.C the proposed accused has no locus to participate in the proceeding of the complaint case and while so, his defence cannot be taken on record. Whether the complainant has committed breach of the agreement or not is a question of fact which the petitioner may demonstrate during the trial. Moreover, it is defence of the petitioner which he may set-up during the trial. On the basis of the materials brought on record the learned trial Judge has rightly taken cognizance of the offence under Section 406/417 IPC. 7. In view of the law on the subject that at this stage the court is required only to see whether a prima-facie case has been made out or not, in the above facts, I am not inclined to interfere with the impugned order dated 05.07.2014 and accordingly, Cr.M.P No. 30 of 2016 is dismissed.