Allahabad High Court
NAGENDRA KUMAR YADAV @ KAPTAN YADAVversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 420 and 406 IPC cannot co‑exist in the same charge, rendering the cognizance order dated 03‑05‑2023 void with respect to the applicant.
Summary
The applicant, Nagendra Kumar Yadav, filed an application under Section 528 of the CrPC seeking to quash the cognizance and charge sheet in Case No. 37 of 2023, which alleged offences under Sections 419, 420, 406 and 506 IPC arising from Crime No. 68 of 2020. The applicant argued that Sections 420 (cheating) and 406 (criminal breach of trust) cannot be concurrently applied to the same facts, relying on the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024 SCC 690). The State opposed the prayer but did not contest the settled legal principle. The High Court accepted the legal argument, held that the Supreme Court’s ratio is retrospective, and consequently set aside the cognizance order dated 03‑05‑2023 insofar as it pertained to the applicant, directing the lower court to consider a fresh order if required. The application was allowed in part.
Issues considered
- Whether Sections 420 and 406 of the IPC can be invoked together for the same set of facts.
- Whether the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024) applies retrospectively to a cognizance order dated before the judgment.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 528
- Indian Penal Code — s. 406, 419, 420, 506
Subjects
- cheating
- criminal breach of trust
- IPC Section 420
- IPC Section 406
- quash of cognizance
- Section 528 CrPC
- co‑accusation
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 12673 of 2026
Nagendra Kumar Yadav @ Kaptan Yadav
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Amrita Pandey, Radhey Krishna
Pandey
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for the applicant and learned AGA for the State.
2. The present application has been preferred for seeking quashing of entire
proceeding of Case no. 37 of 2023 (State vs. Nagendra Kumar Yadav @
Kaptan Yadav) arising out of Case Crime no. 68 of 2020, under sections
419, 420, 406, 506 IPC, PS- Saraimamrej, District Prayagraj and set aside
the cognizance order dated 03.05.2023 passed by learned Additional Chief
Judicial Magistrate, Allahabad and charge sheet 12.10.2020.
3. Learned counsel appearing on behalf of applicant has challenged the
impugned charge sheet along with cognizance/summoning order and entire
proceedings of the present case 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
NA528 No. 12673 of 2026
2
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 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. On the other hand, learned A.G.A. has 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
applicants.
5. Since, only legal argument has been raised at the behest of applicant,
NA528 No. 12673 of 2026
3
process to issue notice to opposite party no. 2 is hereby dispensed with.
6. After hearing the learned counsel for the parties, going through the record
of the case and the judgment of the Hon'ble Supreme 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 3.5.2023 is liable to be set aside.
Although judgment of Hon'ble Supreme Court rendered in the case of Delhi
Race Club (Supra) has been passed on 23.08.2024 and cognizance of
offence in the present case, has been taken on dated 3.5.2023 and as per the
judgment rendered by Hon'ble the Apex Court in the case of Kanishk Sinha
and another Vs. The State of West Bengal and another [2025 SCC
Online SC 443], the judgment of Hon'ble the Apex Court will always be
retrospective in nature unless the judgment itself specifically states that the
judgment will operate prospectively.
7. In view thereof, cognizance/summoning order dated 3.5.2023 passed in
Case no. 37 of 2023 (State vs. Nagendra Kumar Yadav @ Kaptan Yadav)
arising out of Case Crime no. 68 of 2020, under sections 419, 420, 406, 506
IPC, PS- Saraimamrej, District Prayagraj is quashed only in respect of
applicant(s) herein. 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).
8. Accordingly, the instant application stands allowed in part.
(Saurabh Srivastava,J.)
April 21, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
Checking your session…