MOHD ASIFversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
            APPLICATION U/S 528 BNSS No. - 11418 of 2026

Mohd Asif
                                                    .....Applicant(s)
                                Versus

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

Counsel for Applicant(s)                       :   Shadab Ali
Counsel for Opposite Party(s)                  :   G.A.

Court No. - 77
                 HON'BLE SAURABH SRIVASTAVA, J.

Ref: Criminal Misc. Amendment Application No.1 of 2026

1. This is an application seeking amendment in the prayer clause.

2. Learned counsel for the applicants seeks permission to amend
the prayer clause of the instant application, since due to
inadvertent mistake, cognizance order dated 06.06.2025 has been
left out after chargesheet dated 01.03.2025.

3. Cause shown is sufficient and as such amendment application is
hereby allowed.

4. The prayer made by learned counsel for the applicant is
allowed.

5. Let necessary incorporation be carried out by learned counsel
for the applicant in prayer clause of this application during the
course of day.

Order on 582 BNSS Application.

1. Heard learned counsel for applicant and learned AGA for the
State.

2. Present application has been preferred with the prayer to quash
the chargesheet dated 01.03.2025 and cognizance/summoning
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order dated 06.06.2025 along with entire proceedings of Case
No.9156/9/2025 (Computerized No.38771 of 2025) (State Vs.
Mohd. Asif and others) arising out of Case Crime no.0165 of 2024,
Police Station Civil Lines, District Moradabad, pending before Chief
Judicial Magistrate, District Moradabad.

3. Learned counsel appearing on behalf of applicant has
challenged      the   impugned       chargesheet       along        with
cognizance/summoning order precisely on the ground that
Sections 420 and 406 IPC cannot go together in the same breath
as per the proposition of law settled by Hon'ble Supreme Court in
the case of Delhi Race Club (1940) Ltd. and others vs. State of
Uttar Pradesh and another reported in 2024 10 SCC 690. The
relevant portion of the said judgment is being reproduced
hereinbelow:-

    "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 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
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                                3


    time when the offence is said to have been committed.
    Therefore, it is this intention, which is the gist of the
    offence.

    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
    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.

    55. It is high time that the police officers across the
    country are imparted proper training in law so as to
    understand the fine distinction between the offence of
    cheating vis-vis criminal breach of trust. Both offences
    are independent and distinct. The two offences cannot
    coexist simultaneously in the same set of facts. They are
    antithetical to each other. The two provisions of IPC (now
    BNS, 2023) are not twins that they cannot survive without
    each other."

4. Since the arguments as advanced on behalf of learned counsel
for applicant, are based on legal issue, no notice is required to be
issued to opposite party no.2.

5. On the other hand, learned A.G.A. have vehemently opposed
the prayer sought through the instant application but unable to
dispute the settled proposition of law as relied upon by the learned
counsel appearing for applicant.

6. After hearing the learned counsel for the parties, going through
the record of the case and the judgment of the Hon'ble Supreme
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                                                                    4


                                    Court rendered in the case of Delhi Race Club (Supra), it is
                                    crystal clear that both the sections i.e. Sections 420 and 406 IPC
                                    cannot go in the same breath and as such, cognizance/summoning
                                    order      dated   06.06.2025       passed   in   Case   No.9156/9/2025
                                    (Computerized No.38771 of 2025) (State Vs. Mohd. Asif and
                                    others) arising out of Case Crime no.0165 of 2024, Police Station
                                    Civil Lines, District Moradabad, pending before Chief Judicial
                                    Magistrate, District Moradabad, is quashed. Matter is hereby
                                    remitted back to learned court concerned for passing fresh order of
                                    taking cognizance of offence, if required, in light of the proposition
                                    of law settled by Hon'ble Supreme Court in the case of Delhi Race
                                    Club (supra).

                                    7. Accordingly, the instant application stands allowed in part.

                                    May 6, 2026
                                    Ashish/-

                                                                                      (Saurabh Srivastava,J.)




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