SMT REKHA AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 15101 of 2026

Smt Rekha And Another
                                                              .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)           :   Archana Singh, Shreeprakash Singh
Counsel for Opposite Party(s)      :   G.A.

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

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

2. Present application has been preferred with the prayer to
cognizance/summoning order dated 27.10.2025 along with further
proceedings of Criminal Case No.21600 of 2025 (State Vs. Smt. Rekha and
another) arising out of Case Crime no. 1012 of 2021, under Sections 420,
406, 506 IPC, P.S.- Kotwali Nagar, District Etah, pending in the court of
learned Chief Judicial Magistrate, Etah.

3. Learned counsel appearing on behalf of applicants has challenged
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
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                                 2

     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. Since the arguments as advanced on behalf of learned counsel for
applicants, 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. 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.

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,
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                                                                    3

                                    cognizance/summoning order dated 27.10.2025 passed in Criminal Case
                                    No.21600 of 2025 (State Vs. Smt. Rekha and another) arising out of Case
                                    Crime no. 1012 of 2021, under Sections 420, 406, 506 IPC, P.S.- Kotwali
                                    Nagar, District Etah, pending in the court of learned Chief Judicial
                                    Magistrate, Etah, 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
                                    Vivek Kr.
                                                                                        (Saurabh Srivastava,J.)




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