JUDGMENT : Anil Kumar Choudhary, J. I.A. No.12214 of 2025 Heard the parties. Learned counsel for the petitioners submits that this interlocutory application has been filed with a prayer to delete the name of the petitioner No.1 of this Criminal Miscellaneous Petition namely Lakhan Lal Sahu who died on 10.08.2022 during the pendency of this Criminal Miscellaneous Petition. Considering the facts of the case, the prayer of the petitioners is allowed. Registry is directed to delete the name of the petitioner No.1 of this Criminal Miscellaneous Petition namely Lakhan Lal Sahu from the cause-title of this Criminal Miscellaneous Petition and re-number the remaining petitioners as petitioner Nos.1 and 2 with red ink. Accordingly, this interlocutory application stands allowed. Cr.M.P. No.2995 of 2021 This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash the entire criminal proceedings including the order dated 29.05.2021 passed in connection with Chutia P.S. Case No.200 of 2019 corresponding to G.R. Case No.1612 of 2021 whereby and where under the learned Magistrate has taken cognizance of the offences punishable under Sections 420 , 467, 468, 452, 323, 506/34 of the INDIAN PENAL CODE even though the charge-sheet has been submitted in this case, finding the allegations against the petitioners to be true only in respect of the offences punishable under Sections 420 /406/34 of the INDIAN PENAL CODE . 2. The allegation against the petitioners is that the father of the petitioners along with their brother namely Lakhan Lal Sahu entered into agreement for sale with the informant and took advance but after that the father of the petitioners died. The allegation against the petitioner No.2 is that he received Rs.1,05,000/- and petitioner No.1 received Rs.50,000/- as advance, from the complainant, after the death of their father, with promise to execute the sale- deed but the petitioner No.1 along with the co-accused Lakhan Lal Sahu executed a sale-deed in favour of a third party, concealing the same from the complainant and when the complainant demanded his advance amount back, they assaulted the complainant. The complainant filed Complaint Case No.168 of 2019 in the court of learned Chief Judicial Magistrate, Ranchi which was referred to police under Section 156 (3) of Cr.P.C., basing upon which Chutia P.S. Case No.200 of 2019 was registered and police took up the investigation of the case. After completion of the investigation, police submitted charge-sheet inter alia against the petitioners for having committed the offences punishable under Sections 406 /420/34 of the INDIAN PENAL CODE but the learned Magistrate, under a mistaken notion, that charge-sheet has been submitted finding the allegations to be true in respect of the offences punishable under Sections 420 , 467, 468, 452, 323, 506 of the INDIAN PENAL CODE , has taken cognizance of the said offences. 3. Learned counsel for the petitioners relies upon the judgment of the Hon’ble Supreme Court of India in the case of Vijay Kumar Ghai & Others vs. State of West Bengal & Others reported in (2022) 7 SCC 124 and submits that therein the Hon’ble Supreme Court of India has relied upon its own judgment 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. 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) and submits that unless the accused person has played deception since the beginning of the transaction between the parties, the offence of cheating is not made out. 4. 4. Learned counsel for the petitioners submits that admittedly the petitioners were not involved in the transaction of agreement for sale rather their father Ram Sewak Sahu was negotiating and entered into the agreement for sale with the complainant, hence, the question of the petitioners playing deception since the beginning of the transaction does not arise and in the absence of the same, the offence punishable under Section 420 of the INDIAN PENAL CODE is not made out. 5. Learned counsel for the petitioners further submits that since police has submitted charge-sheet only for having committed the offences punishable under Sections 420 /406/34 of the INDIAN PENAL CODE , there is no way the learned Magistrate could have taken cognizance of the offences other than the offences in respect of which charge-sheet has been submitted by the police and under a mistaken notion that the police has submitted charge-sheet in respect of the offences for which the F.I.R. was registered, though in fact, the same was not the case, the learned Magistrate having taken cognizance of the offences other than the offences punishable under Section 406 /420/34 of the INDIAN PENAL CODE , hence, such cognizance order is bad in law. It is, therefore, submitted that the prayer, as prayed for in the instant Cr.M.P., be allowed. 6. Learned counsel appearing for the State and the learned counsel appearing for the opposite party No.2 submit that the materials in the record are sufficient to establish each of the offences in respect of which the learned Magistrate has taken cognizance. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 7. 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 , paragraph- 12 of which reads as under:- “ 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 Sale between the parties. 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 Sale 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) wherein the Hon’ble Supreme Court of India has held that the payment of advance amount in the transaction of sale agreement, is not entrustment. 8. The Hon’ble Supreme Court of India in the case of Dalip Kaur & Others vs. Jagnar Singh & Another reported in (2009) 14 SCC 696 paragraph-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) has categorically held that if the dispute between the parties is essentially a civil dispute resulting from the breach of contract on the part of the accused persons by non-refunding the amount of advance, the same would not constitute the offence of cheating. 9. 9. It is also a settled principle of law that the Magistrate at the time of taking cognizance based on a charge-sheet cannot take cognizance of the offences other than the offences in respect of which charge-sheet has been submitted as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659 paragraph-15 of which reads as under:- “ 15 . The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the charge-sheet.”(Emphasis supplied) 10. Now, coming to the facts of the case, the admitted case of the complainant is that the petitioners were not in picture when the complainant entered into the agreement for sale with their father and one of the co-accused namely Lakhan Lal Sahu. Under such circumstances, as the petitioners admittedly were not in any way associated with the agreement for sale since the beginning of the transaction between the parties, the question of the petitioners playing deception since the beginning of the transaction between the parties does not arise. In the absence of the same, the offences punishable under Section 420 of the INDIAN PENAL CODE is not made out against the petitioners. 11. So far as the offence punishable under Section 406 of the INDIAN PENAL CODE is concerned, though the learned Magistrate has not taken cognizance of the said offence but charge-sheet was submitted for the said offence which was overlooked by the learned Magistrate. As already been mentioned above in the foregoing paragraphs of this judgement, the Hon’ble Supreme Court of India in the case of Radheyshyam & Others vs. State of Rajasthan & Another (supra) and Dalip Kaur & Others vs. Jagnar Singh & Another (supra), has held that such advance payment will not amount to entrustment. So, in the absence of any allegation of any entrustment or any dishonest misappropriation of any entrusted property, certainly the offence punishable under Section 406 of the INDIAN PENAL CODE is also not made out against the petitioners. 12. In view of the settled principle of law in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra), the learned Judicial Magistrate-1st Class, Ranchi has committed a gross illegality by taking cognizance of the offences other than the offences, in respect of which charge-sheet was submitted against the petitioners by carelessness and oversight of the learned Magistrate concerned. In view of the settled principle of law in the case of State of Gujarat vs. Girish Radhakrishnan Varde (supra), the learned Judicial Magistrate-1st Class, Ranchi has committed a gross illegality by taking cognizance of the offences other than the offences, in respect of which charge-sheet was submitted against the petitioners by carelessness and oversight of the learned Magistrate concerned. Hence, the cognizance of the offences other than the offences in respect of which charge-sheet was submitted against the petitioners, is also not sustainable in law. 13. In view of the discussions made above, 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, therefore, this is a fit case where the entire criminal proceedings including the order dated 29.05.2021 passed in connection with Chutia P.S. Case No.200 of 2019 corresponding to G.R. Case No.1612 of 2021, be quashed and set aside. 14. Accordingly, the entire criminal proceedings including the order dated 29.05.2021 passed in connection with Chutia P.S. Case No.200 of 2019 corresponding to G.R. Case No.1612 of 2021, is quashed and set aside qua the petitioners named above. 15. In the result, this Cr.M.P. stands allowed.