JUDGMENT : ANIL KUMAR CHOUDHARY, J. Heard the parties. 2. Though opposite party No.2 has put his appearance through a lawyer but no one turns up on behalf of the opposite party No.2 in spite of repeated calls. 3. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 with the prayer to quash/set aside the cognizance order dated 29.09.2021 passed by the learned Judicial Magistrate, Ranchi in Doranda P.S. Case No.248 of 2018 corresponding to G.R. No.2386 of 2021 registered for the offences punishable under Sections 420, 406, 120B and 34 of the Indian Penal Code. 4. The allegation against the petitioners is that the petitioner No.1 entered into a development agreement for development of her land by the complainant and as per which, the petitioner No.1 was supposed to get 40% of the constructed area while the remaining 60% was of the complainant. There is also allegation against the petitioners that the petitioner No.1 was having 40% share in Flat No.302 which she offered to sell to the complainant and the complainant accepted the offer and paid Rs.22,65,000/- but the petitioner No.1 has not executed the transfer deed in respect of her 40% share of Flat No.302 nor returned the amount of money of Rs.22,65,000/-. The only allegation against the petitioner No.2 is that the petitioner No.2 received two cheques of Rs.2,50,000/- each with the consent of petitioner No.1, out of the said amount of Rs.22,65,000/- paid by the complainant. There is further allegation that the petitioner No.1 executed a power of attorney in which the petitioner No.1 claims 60% share of her from the constructed area; whereas the share of the complainant-builder is 40%. 5. It is submitted by the learned counsel for the petitioners that the allegations against the petitioners are out and out false. The dispute between the parties is a civil dispute. As per Clause No.18 of Development Agreement, the copy of which has been annexed herewith, in case of any dispute or difference between the parties arising out of or relating to this Development Agreement, the same shall be settled by reference of the dispute or difference to the Arbitrators appointed by both the parties but instead of going for the arbitration, the complainant has given a cloak of criminal case to the civil dispute. It is next submitted that even if the entire allegation made against the petitioners are considered to be true, still neither the offence punishable under Section 420 nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioners even with the aid of Section 120B or 34 of the Indian Penal Code. 6. Learned counsel for the petitioners draws the attention of this Court towards the copy of the certified copy of the power of attorney executed by the petitioner No.1 in favour of the complainant which also bears the signature of the complainant and submits that therein at page 75 of the brief, it has categorically been mentioned by the petitioner No.1 that the ratio of the share of builder is 60% while that of the petitioner No.1 is 40%. It is next submitted that this criminal case has been instituted against the petitioners only for the purpose of wreaking vengeance. Hence, it is submitted that the prayer, as prayed for in this Cr.M.P., be allowed. 7. 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 materials in the record are sufficient to constitute both the offences punishable under Sections 406 and 420 of the Indian Penal Code. Hence, it is submitted that this Cr.M.P., being without any merit, be dismissed. 8. 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 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. 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) wherein the Hon’ble Supreme Court of India 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, non-refunding the amount of advance, the same would not constitute the offence of cheating and similar is the legal position in respect of the offence of criminal breach of trust. 9. It is also 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 & Anr. 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) wherein it has been held that in order to constitute the offence of cheating the accused must play deception since the very inception. If the intention to cheat is developed later on, the same cannot amount to cheating. 10. 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. 10. 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) has reiterated the settled principle of law that the amount paid towards consideration cannot be said to have been entrusted with the accused persons by the complainant and merely because the seller is refusing to register the sale, it does not amount to misappropriation of the advance payment. 11. Now coming to the facts of the case so far as the offence punishable under Section 420 of the Indian Penal Code is concerned, there is absolutely no allegation against the petitioners of playing deceptions since the inception. In the absence of the same and in the absence of other essential ingredients, mere not refunding of the advance amount even if the said the allegations are considered to be true, then the dispute between the parties is basically regarding breach of contract. Hence, this Court is of the considered view that the offence punishable under Section 420 of the Indian Penal Code is not made out against either of the petitioners even with aid of Section 120B or 34 of the Indian Penal Code. 12. So far as the offence punishable under Section 406 of the Indian Penal Code is concerned, in view of the 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 (supra), there is no allegation of any entrustment of any property nor is there any allegation of dishonest misappropriate of the same. 13. 13. Under such circumstances, this Court has no hesitation in holding that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 406 of the Indian Penal Code is not made out. In view of the discussions made above, as neither the offence punishable under Section 420 of the Indian Penal Code nor the offence punishable under Section 406 of the Indian Penal Code is made out against the petitioners, even if the entire allegations made against them are considered to be true in their entirety, therefore, this Court has no hesitation in holding that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law, hence, this is a fit case where the cognizance order dated 29.09.2021 passed by the learned Judicial Magistrate, Ranchi in Doranda P.S. Case No.248 of 2018 corresponding to G.R. No.2386 of 2021, be quashed and set aside against the petitioners named above. 14. Accordingly, the cognizance order dated 29.09.2021 passed by the learned Judicial Magistrate, Ranchi in Doranda P.S. Case No.248 of 2018 corresponding to G.R. No.2386 of 2021, is quashed and set aside qua the petitioners named above. 15. In the result, this Criminal Miscellaneous Petition stands allowed. 16. In view of disposal of the instant Criminal Miscellaneous Petition, pending interlocutory application, if any, stands disposed of being infructuous.