1. Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with the prayer to quash the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No.557 of 2025 registered for the offence punishable under Sections 316 (2) and 318 (2) of the Bharatiya Nyaya Sanhita, pending in the court of learned Chief Judicial Magistrate, Deoghar.

3. The brief fact of the case is that the brother of the petitioners along with these two persons and another person namely Sah Alim Iqbal @ Sona and other persons took Rs.1,31,250/- from the informant for selling their land but since there was a suit pending in respect of the property to be sold and there was an injunction order, the father of the petitioners and other persons could not sell the said land to the informant but the petitioners are not executing the sale deed, in respect of which money has been taken by their predecessor-in-interest.

4. Learned counsel for the petitioners submits that the allegations against the petitioners are all false. It is next submitted that there is no allegation against of the petitioners of playing deception since the beginning of the transaction between the parties and in the absence of the same, neither the offence punishable under Section 316 (2) of the Bharatiya Nyaya Sanhita nor the offence punishable under Section 318 (2) of the Bharatiya Nyaya Sanhita is made out against any of the petitioners. Hence, it is submitted that the prayer, as prayed for in the instant Criminal Miscellaneous Petition, be allowed.

5. Learned Spl. P. P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners and submits that in view of the allegations made, both the offences in respect of which F.I.R has been registered, is made out against the petitioners; therefore, at this nascent stage, the same ought not to be quashed. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit be dismissed.

6. Having heard the submissions made at the Bar and after going through the materials available in the record, so far as the offence punishable under Section 316 (2) of the Bharatiya Nyaya Sanhita is concerned, the essential ingredients to constitute the said offence are:-

                  (i) There must be an entrustment and,

                  (ii) there must be misappropriation or conversion to one’s own use, or use in violation of a legal direction or of any legal contract.

                  as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. Central Bureau of Investigation reported in (2003) 3 SCC 641 of course, in relation to the offence punishable under Section 406 of the Indian Penal Code which corresponds to Section 316 (2) of the Bharatiya Nyaya Sanhita.

7. It is pertinent to mention here that 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 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)

                  wherein the Hon’ble Supreme Court of India has held that the amount paid towards consideration cannot be said to have been entrusted with the accused persons by the complainant and merely because the accused persons are refusing to register the sale, it does not amount to misappropriation of the advance amount paid.

8. Further, in the case of Murari Lal Gupta vs. Gopi Singh reported in (2005) 13 SCC 699 the Hon’ble Supreme Court of India has reiterated the settled principle of law that merely because an agreement to sell was entered into and which agreement, the accused person of the case failed to honour, it cannot be said that the seller has cheated the complainant and no case for prosecution under Section 420 or Section 406 of the Indian Penal Code is made out; para-6 of the said judgment reads as under:-

                  “6. We have perused the pleadings of the parties, the complaint and the orders of the learned Magistrate and the Sessions Judge. Having taken into consideration all the material made available on record by the parties and after hearing the learned counsel for the parties, we are satisfied that the criminal proceedings initiated by the respondent against the petitioner are wholly unwarranted. The complaint is an abuse of the process of the court and the proceedings are, therefore, liable to be quashed. Even if all the averments made in the complaint are taken to be correct, yet the case for prosecution under Section 420 or Section 406 of the Penal Code is not made out. The complaint does not make any averment so as to infer any fraudulent or dishonest inducement having been made by the petitioner pursuant to which the respondent parted with the money. It is not the case of the respondent that the petitioner does not have the property or that the petitioner was not competent to enter into an agreement to sell or could not have transferred title in the property to the respondent. Merely because an agreement to sell was entered into which agreement the petitioner failed to honour, it cannot be said that the petitioner has cheated the respondent. No case for prosecution under Section 420 or Section 406 IPC is made out even prima facie. The complaint filed by the respondent and that too at Madhepura against the petitioner, who is a resident of Delhi, seems to be an attempt to pressurise the petitioner for coming to terms with the respondent. (Emphasis supplied)

9. In the case of Sarabjit Kaur vs. State of Punjab & Another reported in (2023) 5 SCC 360, the Hon’ble Supreme Court of India has deprecated the trend of converting civil dispute into criminal case and putting pressure upon the accused person of the case for returning the amount.

10. 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 reiterated the settled principle of law that if the dispute between the parties is essentially a civil dispute resulting from the breach of contract on the part of the accused person by non-refunding the amount of advance, the same would not constitute the offence of cheating.

11. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the offence punishable under Section 316 (2) of the Bharatiya Nyaya Sanhita is not made out.

12. So far as the offence punishable under Section 318 (2) of the Bharatiya Nyaya Sanhita 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. 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 in order to constitute the offence of cheating, the accused must play deception since the beginning of the transaction between the parties and if the intention to cheat has developed later on, the same cannot amount to cheating.

13. Now coming to the facts of the case, the deception, if any, is alleged against the predecessor-in-interest of the petitioners who has since been deceased. There is no allegation against the petitioners of playing any role at the time of initial transaction between the informant and the predecessor-in-interest of the petitioners as well as others.

14. Under such circumstances, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in its entirety, still the same is insufficient to constitute the offence punishable under Section 318 (2) of the Bharatiya Nyaya Sanhita.

15. In view of the discussions made above, since neither of the offence in respect of which F.I.R has been registered is made out against the petitioners, hence, continuation of the criminal proceeding against the petitioners will amount to abuse of process of law, therefore, this is a fit case where the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No. 557 of 2025 be quashed and set aside qua the petitioners named above.

16. Accordingly, the entire criminal proceeding arising out of Deoghar (Town) P.S. Case No. 557 of 2025 is quashed and set aside qua the petitioners named above.

17. In the result, this Criminal Miscellaneous Petition is allowed.