Allahabad High Court
SMT RAJKUMARI AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 420 and 406 IPC are mutually exclusive and cannot be applied together, warranting the setting aside of the cognizance order.
Summary
The applicants filed an application under Section 528 seeking to quash the chargesheet, cognizance and summoning orders in a case where they were charged under Sections 420, 467, 468, 471, 406 and 507 IPC. They contended that Sections 420 (cheating) and 406 (criminal breach of trust) cannot be concurrently applied, relying on the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024). The State opposed the prayer but could not refute the settled legal principle. The High Court, after examining the Supreme Court judgments, held that the two offences are mutually exclusive and set aside the cognizance order dated 22.10.2019, remitting the matter for fresh consideration. The application was allowed in part.
Issues considered
- Can Sections 420 and 406 of the IPC be invoked together for the same conduct?
- Is the cognizance/summoning order dated 22.10.2019 liable to be set aside in view of the Supreme Court’s ruling?
- Does the Supreme Court’s judgment operate retrospectively for pending cases?
Legislation cited
- Indian Penal Code — s. 406, 420, 467, 468, 471, 507
Subjects
- Section 420 IPC
- Section 406 IPC
- Cheating
- Criminal breach of trust
- Supreme Court precedent
- Retrospective effect
- Cognizance order
- Quash application
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 15117 of 2026
Smt Rajkumari And 2 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Prem Chandra Dwivedi, Vivek Kumar
Dwivedi
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 quash the
chargesheet dated 14.09.2019, cognizance/summoning order dated
22.10.2019 and NBW order dated 24.10.2025 as well as entire proceedings
of Case No.7252 of 2019 (State Vs. Rajkumari and others), arising out of
Case Crime no. 249 of 2019, under Sections 420, 467, 468, 471, 406, 507
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 the
impugned chargesheet 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 breath it
cannot be said that the accused has also committed the offence of
cheating as defined and explained in Section 415 IPC, punishable
NA528 No. 15117 of 2026
2
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 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.
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
NA528 No. 15117 of 2026
3
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 22.10.2019 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 22.10.2019 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 22.10.2019 passed in
Case No.7252 of 2019 (State Vs. Rajkumari and others), arising out of Case
Crime no. 249 of 2019, under Sections 420, 467, 468, 471, 406, 507 IPC,
P.S.- Kotwali Nagar, District Etah, pending in the court of learned Chief
Judicial Magistrate, Etah, is set aside. 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.
May 6, 2026
Vivek Kr.
(Saurabh Srivastava,J.)
Digitally signed by :-
VIVEK KUMAR
High Court of Judicature at Allahabad
Checking your session…