MAHENDRAversusState of U.P. AND ANOTHER

             HIGH COURT OF JUDICATURE AT ALLAHABAD

                 APPLICATION U/S 482 No. - 8123 of 2024

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

Counsel for Applicant(s)         :   Ajai Kumar Singh, Anchal Kumar Rao,
                                     Bhoopendra Pratap Singh, Shiv Chand
                                     Yadav
Counsel for Opposite Party(s)    :   Ashwani Kumar Pathak, G.A.

Court No. - 81
                      HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the applicant and the learned A.G.A. for the
State.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing the charge-sheet dated 12th May, 2023, cognizance/summoning
order dated 11th July, 2023 as well as the entire Criminal Case No. 48767 of
2023 (State Vs. Kundan & Others) under Sections 419, 420 and 406 I.P.C.,
Police Station-Gagaha, District-Gorakhpur, pending in the Court of Additional
Civil Judge (Junior Division), Court No.4, Gorakhpur.

3. Learned counsel for the applicant submits that the applicant has been
summoned under Sections under Sections 419, 420 and 406 I.P.C. vide order
dated 11th July, 2023. It is further submitted that both Sections 406 and 420
I.P.C. cannot go together in the same breath, in view of the law laid down by
the Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of Uttar
Pradesh and Another, reported in (2024) 10 SCC 690. It is thus contended
that the impugned proceedings are liable to be set aside.

4. Per contra, learned A.G.A. has opposed the prayer made in the appeal;
however, he could not dispute the settled proposition of law relied upon by the
learned counsel for the applicant.

5. The controversy involved in the present case relates to the co-existence of
offences under Sections 406 and 420 I.P.C. on the same set of allegations.
The Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of
Uttar Pradesh and Another (supra) has clarified the legal position. The
relevant portion of the judgment is reproduced hereinbelow:
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                                  2

“38. In our view, the plain reading of the complaint fails to spell out any of the
aforesaid ingredients noted above. We may only say, with a view to clear a
serious misconception of law in the mind of the police as well as the courts
below, that if it is a case of the complainant that offence of criminal breach of
trust as defined under Section 405 IPC, punishable under Section 406 IPC, is
committed by the accused, then in the same breath it cannot be said that the
accused has also committed the offence of cheating as defined and explained
in Section 415 IPC, punishable under Section 420 IPC.

41. 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 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.

42. The ingredients of the offence of cheating and criminal breach of trust are
distinct and separate, and the same set of facts ordinarily cannot constitute
both the offences simultaneously.

43. 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
misappropriates 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.”

6. After hearing learned counsel for the parties, perusing the record and
considering the law laid down by the Hon’ble Supreme Court, this Court finds
that offences under Sections 406 and 420 I.P.C. cannot ordinarily be invoked
together on the same set of facts. Therefore, the impugned summoning order
dated 11th July, 2023 is not sustainable in law.

7. In view of the aforesaid, cognizance/summoning order dated 11th July,
2023 passed by the Additional Civil Judge (Junior Division), Court No.4,
Gorakhpur in Criminal Case No. 48767 of 2023 (State Vs. Kundan & Others)
under Sections 419, 420 and 406 I.P.C., Police Station-Gagaha, District-
                                                                                                A482 No. 8123 of 2024
                                                                     3

                                    Gorakhpur is hereby set aside.

                                    8. The matter is remitted back to the court concerned to pass a fresh order on
                                    the question of summoning, if required, in light of the law laid down by the
                                    Hon’ble Supreme Court in Delhi Race Club (supra).

                                    9. Accordingly, the present application stands partly allowed.

                                    September 9, 2026
                                    Sushil/-
                                                                                             (Madan Pal Singh,J.)




Digitally signed by :-
SUSHIL KUMAR SINGH
High Court of Judicature at Allahabad