SMT RASHMI SAXENA AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 15319 of 2026

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

Counsel for Applicant(s)      : Atul Srivastava
Counsel for Opposite Party(s) : G.A., Rakesh Kumar Rathore, Sanjeev
                                Kumar

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

1. Heard learned counsel for applicants and Sri Sanjeev Kumar Ratohor,
learned counsel appearing on behalf of opposite party no.2 as well as learned
AGA for the State.

2. Present application has been preferred with the prayer to quash the
chargesheet dated 24.03.2025 and cognizance/summoning order dated
29.04.2025 passed in Criminal Case No.1394 of 2025 (State Vs. Smt.
Rashmi Saxena and others) arising out of Case Crime no. 471 of 2025, under
Sections 420, 406 IPC, P.S.- Bewar, District Mainpuri, pending in the court
of learned Chief Judicial Magistrate, Mainpuri.

3. Learned counsel appearing on behalf of applicants 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
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                                 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 counsel appearing on behalf of opposite party
no.2 as well as 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. 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 29.04.2025 passed in Criminal Case
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                                    No.1394 of 2025 (State Vs. Smt. Rashmi Saxena and others) arising out of
                                    Case Crime no. 471 of 2025, under Sections 420, 406 IPC, P.S.- Bewar,
                                    District Mainpuri, pending in the court of learned Chief Judicial Magistrate,
                                    Mainpuri, 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).

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

                                    May 7, 2026
                                    Vivek Kr.
                                                                                        (Saurabh Srivastava,J.)




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