JUDGMENT : Anil Kumar Choudhary, J. Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash and set aside the entire criminal prosecution arising out of Complaint Case No.3225 of 2019 including the order taking cognizance dated 20.08.2022 passed by learned Judicial Magistrate-1st Class, Dhanbad whereby and where under the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the offences punishable under Sections 420 , 406 & 120B of the Indian Penal Code against the petitioners. 3. The allegation against the petitioners is that the petitioners entered into an agreement with the complainant to sell their land, thereafter, they sent a legal notice for cancelling the development agreement. Subsequently, the petitioners offered to execute power of attorney in favor of the complainant and to execute a fresh agreement. The complainant paid Rs.13 Lakhs as advance at the time of agreement, but the petitioners did not execute any power of attorney nor responded to the legal notice sent by the complainant in connection with selling of the land and the money has not been returned to the complainant by the petitioners. 4. On the basis of the complaint, statement on solemn affirmation and statement of enquiry witnesses, the learned Judicial Magistrate-1st Class, Dhanbad has found prima facie case for the said offences punishable under Sections 420 , 406 & 120B of the Indian Penal Code and ordered for issuance of summons to the petitioners. 5. Learned counsel for the petitioner relies upon the judgment of the Hon’ble Supreme Court of India in the case of Sarabjit Kaur vs. State of Punjab & Another in Criminal Appeal No.581 of 2023 dated 01.03.2023 and submits that therein the Hon’ble Supreme Court of India has held that a breach of contract does not give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction and merely on the allegation of failure to keep up promise will not be enough to initiate criminal proceedings. 6. 6. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Lalit Chaturvedi and Others vs. State of Uttar Pradesh and Another reported in 2024 SCC OnLine SC 171 , paragraph-9 & 10 of which reads as under:- 9.xxxx We will assume that the assertions made in the complaint are correct, but even then, a criminal offence under Section 420 read with Section 415 of the IPC is not established in the absence of deception by making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property at the time of the contract(s) being entered. The ingredients to allege the offence are neither stated nor can be inferred from the averments. A prayer is made to the police for recovery of money from the appellants. The police is to investigate the allegations which discloses a criminal act. Police does not have the power and authority to recover money or act as a civil court for recovery of money. 10.xxxx The chargesheet also refers to Section 406 of the IPC, but without pointing out how the ingredients of said section are satisfied. No details and particulars are mentioned. There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously. For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged. It is a case of sale of goods. The chargesheet does refer to Section 506 of the IPC relying upon the averments in the complaint. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money. However, no details and particulars are given, when and on which date and place the threats were given. Without the said details and particulars, it is apparent to us, that these allegations of threats etc. have been made only with an intent to activate police machinery for recovery of money. (Emphasis supplied) and submits that in the absence of any deception by the accused person making false and misleading representation, dishonest concealment or any other act or omission, or inducement of the complainant to deliver any property, the offence punishable under Section 420 of the Indian Penal Code is not made out. It is next submitted that, therein it is also held by the Hon’ble Supreme Court of India that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously. 7. It is next submitted that the allegation against the petitioners is false. It is then submitted that the petitioners have executed a power of attorney on 24.06.2019 in favour of the complainant and there is an arbitration clause in the development agreement, entered into by the parties. Hence, such criminal proceeding is not maintainable more so because the dispute between the parties is basically a civil dispute. It is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed. 8. Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners made in the instant Cr.M.P and submit that the allegations made in the complaint, statement on solemn affirmation and the statement of enquiry witnesses if considered to be true in their entirety then the offence punishable under Section 406 , 420 & 120B of the Indian Penal Code is made out. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed. 9. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another reported in 2024 SCC OnLine SC 2311 , para12 of which reads as under:- “12.xxxx 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 the amount paid towards consideration cannot be said to have been entrusted with the accused person by the complainant and merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance amount paid. 10. In view of the settled principle of law, this court has no hesitation in holding that in the absence of any allegation of dishonest misappropriate of any entrusted money, even if the allegations made against the petitioners are considered to be true, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioners. 11. So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, 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 & Another reported in (2005) 10 SCC 336 paragraph-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. “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 unless the accused plays deception since the beginning of the transaction between the parties, the offence of cheating will not be made out. 12. Now coming to the facts of this case, there is no allegation against the petitioners of playing any deception since the beginning of the transaction between the parties. So, in the absence of any allegation of the petitioners of playing any deception since the beginning of the transaction between the parties, this Court is of the considered view that the allegations made against the petitioners are considered to be true in their entirety, still the offence punishable under Section 420 of the Indian Penal Code is not made out. 13. In view of the discussions made above, as 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 even if the entire allegation made against the petitioners are considered to be true in their entirety and as there is no material in the record to constitute the offence punishable under Section 120B of the Indian Penal Code , so, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal prosecution arising out of Complaint Case No.3225 of 2019 including the order taking cognizance dated 20.08.2022 passed by learned Judicial Magistrate-1st Class, Dhanbad, be quashed and set aside. 14. Accordingly, the entire criminal prosecution arising out of Complaint Case No.3225 of 2019 including the order taking cognizance dated 20.08.2022 passed by learned Judicial Magistrate-1st Class, Dhanbad, is quashed and set aside. 15. In the result, this Cr.M.P., is allowed.