JUDGMENT : HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer for quashing the entire criminal proceeding being P.C.R. Case No. 582 of 2022 including the order dated 13.03.2023, passed by the learned Sub Divisional Judicial Magistrate, Jamtara whereby and where under the learned Sub Divisional Judicial Magistrate has taken cognizance for the offences punishable under Section 406/420 of the Indian Penal Code. 3. The brief fact of the case is that the husband of the petitioner no.1 who is also the father of the petitioner no.2 & 4 and father-in law of petitioner no.3 entered into an agreement for sale of his land, the consideration amount of which is fixed at Rs.20,00,000/- and took an advance of Rs.2,00,000/- and told the complainant to deposit certain amount in the bank accounts of the petitioner no.1 to 4. The amount was deposited by the informant i.e. in total Rs.13,00,000/- but the husband of the petitioner no.1 namely Dr. Shashikant Dubey is neither returning the money nor executing the sale deed in respect of the land for which the agreement for sale was entered into between the parties. 4. It is submitted by the learned counsel for the petitioner that the allegations against the petitioners are all false. The complainant was interested in purchasing the land from the husband of the petitioner no.1 along with double storied Pucca Building and the price was agreed to at Rs.40,00,000/- out of which the complainant has paid only Rs.2,00,000/- as advance. On being insisted by the husband of the petitioner no.1, the complainant paid in total Rs.20,00,000/- on several dates in the bank account of the husband of the petitioner and her son but did not pay the rest amount of Rs.20,00,000/-. On 01.03.2021, the complainant with three unknown miscreants trespassed to the house of the petitioner no.1 and threatened to implicate the petitioners in a false case for which the husband of the petitioner no.1 filed PCR Case No. 708 of 2022 in the court of learned Sub Divisional Judicial Magistrate, Jamtara. The opposite party no.2 sent a legal notice through her advocate claiming payment of full consideration amount. The opposite party no.2 sent a legal notice through her advocate claiming payment of full consideration amount. The husband of the petitioner no.1 replied to the said notice; contending therein that the opposite party no.2 has not paid the entire amount of Rs.40,00,000/-. It is next submitted by the learned counsel for the petitioners that the allegations against the petitioners are general and omnibus in nature. It is lastly submitted that the dispute between the parties is at best a civil dispute and no criminal case could be made out against the petitioner. 5. Relying upon the Judgment of this Court in the case of Angad Kumar Pandey Vs. The State of Jharkhand & Ors., reported in (2023) 0 Supreme (Jhk) 1096 wherein this Court relied upon the Judgment of Hon’ble Supreme Court of India in the case of M.N.G. Bharateesh Reddy Vs. Ramesh Ranganathan & Another, reported in (2022) SCC Online SC 1061, para -21 to 24 of which reads as under:- “21. The offence of criminal breach of trust contains two ingredients: (i) entrusting any person with property, or with any dominion over property; and (ii) the person entrusted dishonestly misappropriates or converts to his own use that property to the detriment of the person who entrusted it. 22. In Anwar Chand Sab Nanadikar v. State of Karnataka a two-judge bench restated the essential ingredients of the offence of criminal breach of trust in the following words: “7. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly (1) entrustment, and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it. As the question of intention is not a matter of direct proof, certain broad tests are envisaged which would generally afford useful guidance in deciding whether in a particular case the accused had mens rea for the crime.” 23. In Vijay Kumar Ghai v. State of West Bengal another two-judge bench held that entrustment of property is pivotal to constitute an offence under section 405 of the IPC. The relevant extract reads as follows: “28. “Entrustment” of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, “in any manner entrusted with property”. The relevant extract reads as follows: “28. “Entrustment” of property under Section 405 of the Penal Code, 1860 is pivotal to constitute an offence under this. The words used are, “in any manner entrusted with property”. So, it extends to entrustments of all kinds whether to clerks, servants, business partners or other persons, provided they are holding a position of “trust”. A person who dishonestly misappropriates property entrusted to them contrary to the terms of an obligation imposed is liable for a criminal breach of trust and is punished under Section 406 of the Penal Code.” 24. None of the ingredients of the offence of criminal breach of trust have been demonstrated on the allegations in the complaint as they stand. The first respondent alleges that the Appellant caused breach of trust by issuing grossly irregular bills, which adversely affected his professional fees. However, an alleged breach of the contractual terms does not ipso facto constitute the offence of the criminal breach of trust without there being a clear case of entrustment. No element of entrustment has been prima facie established based on the facts and circumstances of the present matter. Therefore, the ingredients of the offence of criminal breach of trust are ex facie not made out on the basis of the complaint as it stands.” (Emphasis supplied) It is submitted by the learned counsel for the petitioners that in the absence of any allegations that the petitioners were actuated by the dishonest intention or have misappropriated the money entrusted to them or converted it to their own use to the detriment of the person who entrusted it, the offence punishable under Section 406 of the Indian Penal Code is not made out. 6. Further relying upon the Judgment of Hon’ble Supreme Court of India in the case of Dalip Kaur Vs. Jagnar Singh, reported in (2009) 14 SCC 696 , para -10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. Jagnar Singh, reported in (2009) 14 SCC 696 , para -10 of which reads as under:- “10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [ (2003) 3 SCC 11 : 2003 SCC (Cri) 703] )” (Emphasis supplied) It is submitted by the learned counsel for the petitioners that therein the Hon’ble Supreme Court of India has observed that if the dispute between the parties was essentially a civil dispute, resulting from a breach of contract on the part of the appellants by non-refunding the amount of advance, the same would not constitute the offence of cheating. 7. The learned counsel for the petitioners further relied upon the Judgment of Hon’ble Supreme Court of India in the case of Vir Prakash Sharma Vs. Anil Kumar Agarwal & Anr., reported in (2007) 7 SCC 373 , para -8 of which reads as under:- “8. The dispute between the parties herein is essentially a civil dispute. Non-payment or underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus: “405. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case. Section 405 of the Penal Code reads, thus: “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits ‘criminal breach of trust’.” Neither any allegation has been made to show existence of the ingredients of the aforementioned provision nor any statement in that behalf has been made.” And submits that therein the Hon’ble Suprme Court of India has observed that when the dispute between the parties is essentially a civil dispute, non-payment or under-payment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. 8. The learned counsel for the petitioners further relied upon the Judgment of Hon’ble Punjab and Haryana High Court in the case of Amir Chand & Anr. Vs. Prem Chand, reported in (2008) 3 Crimes (HC) 538 wherein in the facts of that case, relying upon the Judgment of Hon’ble Supreme Court of India in the case of Ram Biraji Devi and Another Vs. Umesh Kumar Singh and Another, reported in AIR 2006 SC 2035 , held that where the dispute is with regard to sale of property against which some advance was received, refusal to execute the sale deed was merely a civil liability. Hence, it is submitted that the entire criminal proceeding being P.C.R. Case No. 582 of 2022 including the order dated 13.03.2023, passed by the learned Sub Divisional Judicial Magistrate, Jamtara whereby and where under the learned Sub Divisional Judicial Magistrate has taken cognizance for the offences punishable under Section 406/420 of the Indian Penal Code be quashed and set aside. 9. The learned Spl. 9. The learned Spl. P.P. and the learned counsel for the opposite party no.2 on the other hand vehemently opposes the prayer to quash the entire criminal proceeding being P.C.R. Case No. 582 of 2022 including the order dated 13.03.2023, passed by the learned Sub Divisional Judicial Magistrate, Jamtara whereby and where under the learned Sub Divisional Judicial Magistrate has taken cognizance for the offences punishable under Section 406/420 of the Indian Penal Code. It is submitted that the undisputed fact remains that the money has been transferred by the complainant to the bank account of each of the petitioners and the complainant is ready and willing to pay the total consideration amount of Rs.40,00,000/- out of which Rs.20,00,000/- has already been paid by the complainant. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 10. Having heard the submissions made at the Bar and after going through the materials available in the record, it is pertinent to mention here that there is no allegation against any of the petitioners of having deceived the complainant at any point of time. There is no allegation that the petitioners had any intention to deceive the complainant since the beginning of the transaction between them. 11. It is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Uma Shankar Gopalika vs. State of Bihar & Anr. reported in (2005) 10 SCC 336 , paragraph no. 6 of which reads as under :- 6. Xxxx xxxx xxxx It is well settled that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating where there was any deception played at the very inception. If the intention to cheat has developed later on, the same cannot amount to cheating. In the present case it has nowhere been stated that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC.” (Emphasis supplied) that every breach of contract would not give rise to an offence of cheating and only in those cases breach of contract would amount to cheating; where there was any deception played at the very inception. 12. 12. It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Binod Kumar & Ors. Vs. State of Bihar & Anr. reported in (2014) 10 SCC 663 , paragraph-18 of which reads as under :- “18. In the present case, looking at the allegations in the complaint on the face of it, we find that no allegations are made attracting the ingredients of Section 405 IPC. Likewise, there are no allegations as to cheating or the dishonest intention of the appellants in retaining the money in order to have wrongful gain to themselves or causing wrongful loss to the complainant. Excepting the bald allegations that the appellants did not make payment to the second respondent and that the appellants utilised the amounts either by themselves or for some other work, there is no iota of allegation as to the dishonest intention in misappropriating the property. To make out a case of criminal breach of trust, it is not sufficient to show that money has been retained by the appellants. It must also be shown that the appellants dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust.” (Emphasis supplied) that to make out a case of criminal breach of trust, it is not sufficient to show that property has been retained by the accused persons but it must also be shown that the accused persons dishonestly disposed of the same in some way or dishonestly retained the same. The mere fact that the appellants did not pay the money to the complainant does not amount to criminal breach of trust. There is no allegation against the petitioners that the petitioners ever told the complainant to deposit the money in their account, rather it is the specific case of the complainant that on being told by Dr. Shashikant Dubey who is not a petitioner before this Court in this case, she deposited the money in the accounts of the petitioner. 13. There is no allegation against the petitioners that the petitioners ever told the complainant to deposit the money in their account, rather it is the specific case of the complainant that on being told by Dr. Shashikant Dubey who is not a petitioner before this Court in this case, she deposited the money in the accounts of the petitioner. 13. Under Such circumstances, this Court is of the considered view that even if the allegations made in the complaint, statement of the complainant under solemn affirmation and statement of the inquiry witnesses are stated to be true in their entirety still neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioners. Therefore, continuation of this criminal proceeding against the petitioners will amount to abuse of process of law. 14. Accordingly, the entire criminal proceeding being P.C.R. Case No. 582 of 2022 including the order dated 13.03.2023, passed by the learned Sub Divisional Judicial Magistrate, Jamtara whereby and where under the learned Sub Divisional Judicial Magistrate has taken cognizance of the offences punishable under Section 406/420 of the Indian Penal Code is quashed and set aside qua the petitioners only. 15. In the result, this criminal miscellaneous petition is allowed.