JUDGMENT : Anil Kumar Choudhary, J. 1. Heard the parties. 2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in connection with Complaint Case No. 763 of 2021 whereby and where under, the learned S.D.J.M., Ranchi has found prima facie case of the offences punishable under Sections 406 /420/34 of the INDIAN PENAL CODE and directed for issuance of summons inter alia against the petitioner. 3. The brief fact of the case is that the co-accused-Ashish Kumar Mandal is a confidant of the petitioner and on behalf of the petitioner, Ashish Kumar Mandal took Rs.2,00,000/- from the informant as advance to sell the land belonging to the petitioner and paid only Rs.1,00,000/- to the petitioner but during subsistence of the oral agreement for sale, the petitioner sold the land concerned to a third party. 4. On the basis of the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses, the learned S.D.J.M., Ranchi has passed the order dated 18.12.2021. 5. It is submitted by the learned counsel for the petitioner that in paragraph no.5 of the complaint, the complainant has categorically admitted that there has not been any conversation or exchange of information directly between the complainant and the petitioner as the co-accused- Ashish Kumar Mandal admittedly talked only to the mother of the petitioner as the petitioner was not at his home, when the complainant and others along with the co-accused person visited the house of the petitioner at Phusro. It is next submitted by the learned counsel for the petitioner, by relying upon the judgment of the Hon’ble Supreme Court of India in the case of Radheshyam & Ors. vs. State of Rajasthan & Anr. in Criminal Appeal No. 3020 of 2024 arising out of Special Leave to Petition (Crl.) No. 13675 of 2023 dated 22.07.2024, paragraph nos. 6 and 12 of which reads as under:- “6. As already indicated above, a perusal of the complaint which has been registered as the FIR does not spell out any element or ingredient of cheating or breach of trust. Mere non-performance of an Agreement to Sell by itself does not amount to cheating and breach of trust. 6 and 12 of which reads as under:- “6. As already indicated above, a perusal of the complaint which has been registered as the FIR does not spell out any element or ingredient of cheating or breach of trust. Mere non-performance of an Agreement to Sell by itself does not amount to cheating and breach of trust. Respondent no.2 has adequate remedy of filing a Civil Suit for relief of specific performance of a contract which he has already availed and the suit is still pending. The FIR only appears to be an arm-twisting mechanism to pressurise the appellants to execute the Sale Deed or to extract money. Every civil wrong cannot be converted into a criminal wrong. As we find in the present case, respondent no.2 is trying to abuse the criminal machinery for ulterior motives. It is not his case that the appellants duped him to pay the advance amount and entered into an Agreement to Sell. The High Court fell in error in recording a finding that the ingredients of offences under sections 420 and 406 of IPC are present in the instant case. 12. In the present case, the appellants were not entrusted with any property by respondent no.2 – complainant. The only delivery made was of part payment towards an Agreement to Sell between the parties. The amount paid towards consideration cannot be said to have been entrusted with the appellants by respondent no. 2. Additionally, merely because the appellants are refusing to register the sale, it does not amount to misappropriation of the advance payment. Since there was no entrustment of property, the offence of misappropriation of such property and thereby criminal breach of trust cannot be said to be made out.” (Emphasis supplied) that it being a settled principle of law that mere non-performance of an agreement to sell by itself does not amount to cheating, so the offence punishable under Section 420 of INDIAN PENAL CODE is not made out. 6. It is then submitted by the learned counsel for the petitioner that admittedly the complainant has not paid any amount directly to the petitioner and the complainant paid only Rs.2,00,000/- to Ashish Kumar Mandal out of which Ashish Kumar Mandal allegedly paid Rs.1,00,000/- to the petitioner but the petitioner returned back the said money to Ashish Kumar Mandal after he decided to sell the property to a different person. It is next submitted by the learned counsel for the petitioner that assuming for the sake of argument that the petitioner has received some money as advance consideration amount but it being a settled principle of law that the amount paid towards consideration cannot be said to have been an entrustment of property, the offence punishable under Section 406 of INDIAN PENAL CODE is not made out. It is further submitted by the learned counsel for the petitioner that as neither the offence punishable under Section 420 nor the offence punishable under Section 406 of INDIAN PENAL CODE is made out even with the aid of Section 34 of INDIAN PENAL CODE . Therefore, continuation of the criminal proceeding against the petitioner will amount to abuse of process of law. It is lastly submitted that the prayer as made in this criminal miscellaneous petition be allowed. 7. The learned Additional Public Prosecutor and the learned counsel for the opposite party no.2 on the other hand vehemently oppose the prayer as made in this criminal miscellaneous petition and submits that both the offences punishable under Sections 420 and 406 of the INDIAN PENAL CODE is made out against the petitioner basing upon the facts alleged in the complaint, statement of the complainant on solemn affirmation and the statement of the inquiry witnesses. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed. 8. Having heard the submissions made at the Bar and after going through the materials available in the record, this Court finds that the allegation against the petitioner is that the petitioner did not perform his part under an agreement to sell. Admittedly, there is no written document regarding agreement for sale, admittedly, the complainant did not entrust any money to the petitioner directly and admittedly, the complainant did not have any conversation or exchange of offer or acceptance of the offer with the petitioner in connection with the property to be sold; belonging to the petitioner to the complainant. 9. Admittedly, there is no written document regarding agreement for sale, admittedly, the complainant did not entrust any money to the petitioner directly and admittedly, the complainant did not have any conversation or exchange of offer or acceptance of the offer with the petitioner in connection with the property to be sold; belonging to the petitioner to the complainant. 9. Under such circumstances, keeping in view the settled principle of law that mere non-performance of agreement to sell by itself does not amount to the offence of cheating and breach of trust, this Court has no hesitation in holding that even if the entire allegations made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 420 of INDIAN PENAL CODE is not made out. 10. So far as the offence punishable under Section 406 of INDIAN PENAL CODE is concerned, it is a settled principle of law that amount paid towards consideration cannot be said to be an entrustment. 11. Now in this case, there is no entrustment directly to the petitioner made by the complainant. The complainant admits having paid the consideration amount to the co-accused- Ashish Kumar Mandal. 12. Under such circumstances, in the absence of any entrustment, the question of dishonest misappropriation of the same by the petitioner does not arise. Hence, this Court has no hesitation in holding that even if the entire allegations made against the petitioner are considered to be true in its entirety, still the offence punishable under Section 406 of INDIAN PENAL CODE is also not made out against the petitioner. 13. There is no material in the record to suggest that the petitioner has committed any act, deed or thing in furtherance of common intention with the co-accused person-Ashish Kumar Mandal. Therefore, this Court is of the considered view that the continuation of the criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in connection with Complaint Case No. 763 of 2021 be quashed and set aside qua the petitioner only. 14. Accordingly, the entire criminal proceeding including the order dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in connection with Complaint Case No. 763 of 2021 is quashed and set aside qua the petitioner only. 15. 14. Accordingly, the entire criminal proceeding including the order dated 18.12.2021 passed by the learned S.D.J.M., Ranchi in connection with Complaint Case No. 763 of 2021 is quashed and set aside qua the petitioner only. 15. In the result, this criminal miscellaneous petition is allowed.