Advance payment for land sale agreement amid pending suit does not constitute entrustment; non-execution of deed due to injunction not criminal breach of trust or cheating without initial deception.

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 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