JUDGMENT : Anil Kumar Choudhary, J . Cr.M.P. No.695 of 2025 Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the B.N.S.S., 2023 with the prayer to quash and set aside the entire criminal proceeding arising out of Complaint Case No.319 of 2022 including the order taking cognizance dated 10.02.2025 passed by learned Chief Judicial Magistrate, Pakur whereby and where under the learned Chief Judicial Magistrate, Pakur has found prima facie case for the offences punishable under Sections 420/406 of the Indian Penal Code against the petitioner. 3. The allegation against the petitioner is that the petitioner entered into an agreement for sale with the complainant and received Rs.15,50,000/- as advance but did not return the money nor executed the sale deed. 4. Learned counsel for the petitioner relying upon the judgment of 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. 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) submits that therein the Hon’ble Supreme Court of India has reiterated the settled principle of law 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. 5. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another reported in (2014) 10 SCC 663 paragraph-18 of which reads as under:- “18. If the intention to cheat has developed later on, the same cannot amount to cheating. 5. Learned counsel for the petitioner next relies upon the judgment of the Hon’ble Supreme Court of India in the case of Binod Kumar & Others vs. State of Bihar & Another 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) and submits that it has categorically been held by the Hon’ble Supreme Court of India that 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 accused person dishonestly disposed of the same in some way or dishonestly retained the same. 6. Learned counsel for the petitioner next relies upon the judgement of this Court in the case of Sukhjinder Singh @ Sukhinder Singh @ Sukhjindar Singh & Others vs. The State of Jharkhand & Another reported in 2025: JHHC :14743 and submits that in that case, this Court has relied upon the judgment of Hon’ble Supreme Court of India in the case of State of Punjab v. Pritam Chand reported in (2009) 16 SCC 769 paragraph-6 of which reads as under:- “6. Section 406 IPC deals with punishment for criminal breach of trust. Section 406 IPC deals with punishment for criminal breach of trust. In a case under Section 406 the prosecution is required to prove that the accused was entrusted with property or he had dominion over the property and that the accused misappropriated or converted the property to his own use or used or disposed of the property or wilfully suffered any person to dispose of the property dishonestly or in violation of any direction of law prescribing the mode in which the entrusted property should be dealt with or any legal contract express or implied which he had entered into relating to carrying out of the trust.” 7. Learned counsel for the petitioner next relies upon the judgment of this Court in the case of Pramod Bharat Sarawale @ Pramod Bharat Sarwale vs. The State of Jharkhand & Another reported in 2024: JHHC :24985 and submits that in that case, this Court relied upon the judgment of Hon’ble Supreme Court of India in the case of Satishchandra Ratanlal Shah vs. State of Gujarat and Anr. /b>. reported in (2019) 9 SCC 148 wherein the Hon’ble Supreme Court of India has observed that the mere inability of the appellant to return the loan amount cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction. 8. Learned counsel for the petitioner next submits that 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 petitioner; even if the entire allegations made against the petitioner are considered to be true in their entirety, hence, it is submitted that the prayer as prayed for in this Cr.M.P. be allowed. 9. 9. 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 petitioner made in the instant Cr.M.P and submits by relying upon the judgement of the Hon’ble Supreme Court of India in the case of Priti Saraf & Another vs. State (NCT of Delhi) & Another reported in (2021) 16 SCC 142 , that in para-22, of the said judgement, the Hon’ble Supreme Court of India has reiterated the settled principle of law that to exercise powers under Section 482 of Cr.P.C., the complaint in its entirety shall have to be examined on the basis of the allegation made in the complaint/FIR/charge sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. It is next submits that in para-31 of the said judgement, it was also observed by the Hon’ble Supreme Court of India, in the facts of that case, that as the offences under Section 406 and 420 of the IPC cannot be said to be absent on the basis of the allegations made in the complaint/FIR/charge sheet and simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the accused persons, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy. 10. It is next submitted that in this case also there is direct and specific allegation against the petitioner of having committed both the offences punishable under Section 406 and 420 of the Indian Penal Code, hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 11. 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. 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. 12. In view of the settled principle of law, this court has no hesitation in holding that in the absence of any allegation of entrustment or any dishonest misappropriation of any entrusted property, even if the allegations made against the petitioner are considered to be true in their entirety, the offence punishable under Section 406 of the Indian Penal Code is not made out against the petitioner. 13. It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of Dalip Kaur and Others v. Jagnar Singh and Another , 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. 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) wherein the Hon’ble Supreme Court of India has reiterated the settled principle of law that if the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the accused persons by non-refunding the amount of advance the same would not constitute an offence of cheating. 14. Now coming to the facts of the case, the only allegation against the petitioner is that the petitioner is not refunding the amount of advance and there is absolutely no allegation against the petitioner of playing deception since the beginning of the transaction between the parties, hence, in the absence of the same, the offence punishable under Section 420 of the Indian Penal Code is not made out against the petitioner; even if the entire allegations made against him are considered to be true. 15. In view of the discussion made above as neither the offence punishable under Section 406 of the Indian Penal Code nor the offence punishable under Section 420 of the Indian Penal Code is made out against the petitioner, hence, this Court is of the considered view that the continuation of this criminal proceeding against the petitioner will amount to abuse of process of law and this is a fit case where the entire criminal proceeding arising out of Complaint Case No.319 of 2022 including the order taking cognizance dated 10.02.2025 passed by learned Chief Judicial Magistrate, Pakur, be quashed and set aside. 16. Accordingly, the entire criminal proceeding arising out of Complaint Case No.319 of 2022 including the order taking cognizance dated 10.02.2025 passed by learned Chief Judicial Magistrate, Pakur, is quashed and set aside qua the petitioner only. 17. In the result, this Cr.M.P., is allowed. 18. In view of disposal of the instant Cr.M.P., the I.A. No.12782 of 2025 is disposed of being infructuous.