Payment of advance does not imply entrustment necessary for misappropriation under IPC, and cheating requires initial deception, which was lacking in the case.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

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 order dated 16.12.2023 passed by the learned Additional Chief Judicial Magistrate, Hazaribagh in connection with Loshighna P.S. Case No.105 of 2023 corresponding to G.R. Case No.2480 of 2023 whereby and where under the learned Additional Chief Judicial Magistrate, Hazaribagh has taken cognizance of the offences punishable under Sections 406, 420, 34 of the Indian Penal Code.

3. The brief fact of the case is that the petitioners took an advance of Rs.7,00,000/- from the informant for selling his house and land over which the house is situated for a consideration amount of Rs.12,00,000/- . Later on, they also took Rs.5,00,000/- for their personal necessity but they did not execute the sale-deed. On the basis of the complaint filed by the informant, Complaint Case No.957 of 2019 was registered which upon being referred to police under Section 156 (3) of Cr.P.C., Loshighna P.S. Case No.105 of 2023 was registered and police took up the investigation of the case. After completion of the investigation, police submitted charge-sheet against the petitioners for having committed the offences punishable under Sections 406, 420, 34 of the Indian Penal Code and basing upon the same, the learned Additional Chief Judicial Magistrate, Hazaribagh took cognizance of the said offences on 16.12.2023 in the said case.

4. Learned counsel for the petitioners submits that the petitioners are innocent and have not committed any offence. The informant has filed Title Suit No.93 of 2019 prior to registration of this F.I.R. It is then submitted that the informant has not paid the entire consideration amount, hence, the petitioners have not executed the sale-deed. It is then submitted that though the petitioners, consequent upon failure of the informant to pay the remaining amount, the petitioner attempted to return the advance amount taken by him but the same was refused to be accepted by the informant but the informant has received back Rs.1,50,000/- from the petitioners.

5. Learned counsel for the petitioner relies upon the judgment of 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)

and submits that therein the Hon’ble Supreme Court of India has laid down the settled principle of law that the amount paid towards consideration cannot be said to have been entrusted with the accused persons and merely because the accused persons are refusing to register the sale, it does not amount to misappropriation of the advance payment and since there was no entrustment of the property, the offence of misappropriation of the such property and thereby criminal breach of trust cannot be said to have been committed.

6. Learned counsel for the petitioners next reli