MAN BAHADUR SINGHversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 16137 of 2026

Man Bahadur Singh
                                                            .....Applicant(s)
                                  Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Kameshwar Singh, Sudhanshu Kumar
                                Singh
Counsel for Opposite Party(s) : G.A.

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

1. Heard Sri Kameshwar Singh, learned counsel for applicant and learned
A.G.A. for the State.

2. At the very outset, learned counsel for the applicant seeks permission to
correct the prayer clause of instant application by way of challenging the
order through which charges have been framed against the applicant and the
same is hereby allowed.

3. Let necessary correction be carried out in the prayer clause of instant
application by learned counsel for the applicant during the course of day.

4. Present application has been preferred with the prayer to quash the
framing of charge order dated 14.12.2021 as well as order dated 17.09.2025
passed by learned Additional Chief Judicial Magistrate, Court No.2,
Varanasi in Case No.468 of 2009 (State vs. Man Bahadur and Another)
arising out of Case Crime No.534 of 2008, under Sections 419, 406, 420,
506, 120B IPC, P.S. Sigra, District- Varanasi, including the entire
proceedings of above-mentioned case.

5. At the very outset, learned counsel appearing on behalf of applicant has
challenged the impugned orders along with 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:-
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                                   2

     "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 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."

6. 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
applicant.

7. Since the legal issue has been raised by learned counsel for the applicant
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                                    and as such process to issue notice to opposite party no.2 is hereby dispensed
                                    with.

                                    8. After hearing 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,
                                    impugned order dated 14.12.2021, through which charges have been framed
                                    against the applicant as well as other consequential orders such as order
                                    dated 17.09.2025 passed by learned Additional Chief Judicial Magistrate,
                                    Court No.2, Varanasi in Case No.468 of 2009 (State vs. Man Bahadur and
                                    Another) arising out of Case Crime No.534 of 2008, under Sections 419,
                                    406, 420, 506, 120B IPC, P.S. Sigra, District- Varanasi, are hereby set-aside.
                                    Learned court concerned is hereby directed to further frame charges against
                                    the applicant, if required, in light of the proposition of law settled by Hon'ble
                                    Supreme Court in the case of Delhi Race Club (supra).

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

                                    May 6, 2026
                                    Saif




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad