Advance payment under oral sale agreement not entrustment for criminal breach of trust; mere failure to execute sale and selling to third party not cheating absent dishonest intention from inception.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the order dated 14.08.2020 passed by the learned Additional Sessions Judge-II, Jamtara, in Criminal Revision No. 05 of 2020 whereby and where under the learned Additional Sessions Judge-II Jamtara, has affirmed the order dated 18.12.2019 passed by learned Chief Judicial Magistrate, Jamtara in connection with P.C.R. Case No. 282 of 2019. Prayer has also been made to quash and set aside the order dated 18.12.2019 passed by the learned Chief Judicial Magistrate, Jamtara, in connection with P.C.R. Case No. 282 of 2019 whereby and where under the learned Chief Judicial Magistrate, Jamtara dismissed the protest-cum-complaint of the petitioner on the ground that no prima facie is made out.

3. The brief fact of this case is that the complainant filed a Complaint Case No. 48 of 2015; which upon being referred to the police under Section 156(3) of Cr.P.C., the police registered Jamtara P.S. Case No. 210 of 2015 but police after investigation submitted Final Form. Thereafter, the complainant filed protest-cum-complaint petition which was registered as P.C.R. Case No. 282 of 2019. The allegation against the private-opposite party is that the complainant was a tenant of the private-opposite party No. 2-Smt. Pranati Banerjee and Pranati Banerjee intended to sell the shop and at the price of Rs. 4,00,000/-the complainant agreed to purchase the same. The complainant expressed that he is unable to pay the entire amount of Rs. 4,00,000/- at one time. The opposite party No.2 offered that the complainant can pay the entire consideration amount within a span of couple of years in easy installments. In this regard, an agreement for sell was entered into between the parties orally. The complainant in total paid Rs. 3,00,000/- and offered to pay the remaining amount of Rs. 1,00,000/- to the respondent, but respondent declined to accept that there is a balance due in payment of consideration amount and sold the said shop to one Sandeep Kumar Poddar by registered sale deed. The learned Chief Judicial Magistrate, Jamtara considering the contents of protest-cum- complaint petition, statement on solemn affirmation of the complainant and the statement of the inquiry witnesses, found that no prima facie case is made out and held that the matter is related to a civil dispute and dismissed the complaint petition.

4. Being aggrieved by the same, the complainant-petitioner filed Criminal Revision No. 05 of 2020, which was ultimately heard and disposed of by the learned Additional Sessions Judge-II, Jamtara. The learned Additional Sessions Judge-II, Jamtara, considered that the money receipts were not duly proved on record and it is apparent from the case record that there is a series of civil litigation between the parties and concluded that the learned Courts below have rightly dismissed the complaint and by thus observing the learned Additional Sessions Judge-II, Jamtara dismissed the criminal revision.

5. It is submitted by the learned counsel for the petitioner relying upon the judgment of the Hon’ble Supreme Court of India in the case of Kathyayini v. Sidharth P.S. Reddy and Others reported in 2025 SCC OnLine SC 1428 that in para-23 thereof, it has been observed by the Hon’ble Supreme Court of India that pendency of civil proceedings on the same subject matter,