The mere non-execution of a land sale agreement does not constitute criminal misappropriation or cheating; these offences require proof of initial deception or entrustment, rendering the case a civil dispute.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

1. 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 including the First Information Report in connection with Basia P.S. Case No.35 of 2024 registered under Sections 341, 323, 406, 420, 506/34 of the Indian Penal Code against the petitioners.

3. The allegation against the petitioners is that the petitioner no.1 entered into an agreement for sale with the informant, to sale her 40 decimals of land at the rate of Rs.1 lakh per decimal and took an advance of Rs.5 lakhs in which agreement, the petitioner no.2, who is the son of the petitioner no.1 was the witness. The petitioner no.1 also took a cheque of Rs.3,80,000/- which was to be encashed by the petitioner no.1 at the time of registration of the sale deed, but when the informant went to take possession of the said land by erecting a fence, the petitioner no.2 and his relatives did maar-pit, causing minor injuries to the informant.

4. Learned counsel for the petitioners submit that the allegations against the petitioners are false and the petitioner no.1 has never executed any agreement for sale of her land with the informant. It is next submitted that the cheque of Rs.3,80,000/- was given under the signature of Sanjay Barla, but not of the informant, which was never encashed. It is next submitted that the petitioner no.1 never received Rs.5 lakhs advance as claimed by the informant. It is then submitted that the petitioner no.1 has filed a complaint against informant and other persons which upon being referred to police under Section 156(3) of the Cr.P.C.; police registered Basia P.S. Case No.50 of 2024 on 18.06.2024 and this case is a counter case of the said Complaint Case no.1865 of 2023 instituted by the petitioner no.1 on 24.07.2023. It is next submitted that even if the entire allegations made against the petitioners are considered to be true in their entirety, still none of the cognizable offences is made out against the petitioners. It is lastly submitted that the prayer as prayed for in this Cr.M.P., be allowed.

5. Learned Addl.P.P. appearing for the State on the other hand vehemently opposes the prayer of the petitioners made in the instant Cr.M.P and submits that the materials in the record are sufficient to constitute each of the offences in respect of which the FIR has been registered and the case is at its nascent stage. Therefore, it is submitted that this Cr.M.P., being without any merit, be dismissed.

6. 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, 2024 SCC OnLine SC 2311, Para-12 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 consi