SURENDRAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

             APPLICATION U/S 482 No. - 22181 of 2024

Surendra
                                                            .....Applicant(s)
                                  Versus
State of U.P. and Another
                                                               .....Opposite
                                                                     Party(s)

Counsel for Applicant(s)     : Arvind       Prabodh       Dubey,
                               Fakhruzzaman,      Naushad  Alam,
                               Pooja Singh, Rajesh Yadav
Counsel for Opposite Party(s): G.A., Pankaj Bharti

Court No. - 82
               HON'BLE PADAM NARAIN MISHRA, J.

1. On mentioning, Sri Fakhruzzaman, learned counsel for the applicant
submits that he has informed to the counsel for the opposite party no. 2
through whats-app, copy of the same is taken on record.

2. The present application u/s 482 Cr.P.C. has been filed with a prayer to
quash the summoning/cognizance order dated 12.12.2023, passed by learned
Additional Chief Judicial Magistrate, Kairana as well as entire proceedings
of Case No. 7937/9 of 2023 arising out of Case Crime No. 54 of 2023, under
Sections 420, 406 of Indian Penal Code, 1860, Police Station- Babri,
District- Shamli, pending in the Court of learned Additional Chief Judicial
Magistrate, Kairana.

3. Learned counsel for the applicant submits that, in the present matter, the
learned Magistrate has summoned the applicant under Sections 420 and 406
of the IPC, which is not permissible in light of the law laid down by the
Hon'ble Apex Court in Delhi Race Club (1940) Ltd. v. State of U.P., (2024)
10 SCC 690. The learned Magistrate has failed to properly appreciate the
material on record and has mechanically passed the summoning order.

4. Before going in the merits of the case, it is necessary to discuss the
distinction between mere breach of contract and the offence of criminal
breach of trust and cheating. The Hon'ble Supreme Court in the case of
Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 has
summarized that distinction finely. The relevant paragraph is quoted as
under:
                                                                                                     A482 No. 22181 of 2024
                                                                        2

                                    "The distinction between mere breach of contract and the offence of criminal breach
                                    of trust and cheating is a fine one. In case of cheating, the intention of the accused at
                                    the time of inducement should be looked into which may be judged by a subsequent
                                    conduct, but for this, the subsequent conduct is not the sole test. Mere breach of
                                    contract cannot give rise to a criminal prosecution for cheating unless fraudulent or
                                    dishonest intention is shown right from the beginning of the transaction i.e. the time
                                    when the offence is said to have been committed. Therefore, it is this intention, which
                                    is the gist of the offence. Whereas, for the criminal breach of trust, the property must
                                    have been entrusted to the accused or he must have dominion over it. The property in
                                    respect of which the offence of breach of trust has been committed must be either the
                                    property of some person other than the accused or the beneficial interest in or
                                    ownership' of it must be of some other person. The accused must hold that property on
                                    trust of such other person. Although the offence, i.e. the offence of breach of trust and
                                    cheating involve dishonest intention, yet they are mutually exclusive and different in
                                    basic concept. There is a distinction between criminal breach of trust and cheating.
                                    For cheating, criminal intention is necessary at the time of making a false or
                                    misleading representation i.e., since inception. In criminal breach of trust, mere proof
                                    of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is
                                    lawfully entrusted with the property, and he dishonestly misappropriated the same.
                                    Whereas, in case of cheating, the offender fraudulently or dishonestly induces a
                                    person by deceiving him to deliver any property. In such a situation, both the offences
                                    cannot co-exist simultaneously."

                                    5. On the perusal of the records, it appears that the impugned summoning
                                    order dated 12.12.2023 has been passed ignoring the legal position settled by
                                    the Hon'ble Apex Court in the case of the Delhi Race Club (1940) Ltd. v.
                                    State of U.P., (2024) 10 SCC 690. The impugned summoning order does not
                                    reflect the judicial application of the mind and the learned magistrate has
                                    failed to properly appreciate the material available on record and has
                                    mechanically passed the summoning order.

                                    6. The impugned order dated 12.12.2023 is hereby set aside, and the matter
                                    is remanded back to the court concerned to pass a fresh order in accordance
                                    with law reflecting the judicial application of mind in the light of the Delhi
                                    Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690.

                                    March 18, 2026
                                    Israr
                                                                                          (Padam Narain Mishra,J.)




Digitally signed by :-
ISRAR AHMAD
High Court of Judicature at Allahabad