SANJAY AND ANOTHERversusSTATE OF U.P. AND ANOTHER

        HIGH COURT OF JUDICATURE AT ALLAHABAD

        APPLICATION U/S 528 BNSS No. - 16194 of 2025

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

Counsel for Applicant(s)     : Jeetendra Kesharwani, Siddharth
                               Niranjan
Counsel for Opposite Party(s): Abhijeet Mishra, G.A., Nipun Singh,
                               Vivek Chaturvedi

Court No. - 82
              HON'BLE PADAM NARAIN MISHRA, J.

1. Two rejoinder affidavits filed on behalf of applicants, which is
taken on record.

2. The present application u/s 528 BNSS has been filed with a
prayer to quash the entire proceedings of Criminal Case No. 425 of
2025 (State Vs. Sanjay and another), arising out of Case Crime
No. 69 of 2024, under Sections 406 and 420 I.P.C., P.S. T.P.
Nagar, District Meerut, pending in the Court of Chief Judicial
Magistrate, Meerut.

3. Learned counsel for the applicants submits that in the present
case I.O. after investigation submitted charge-sheet on
02.10.2024, under Sections 406 and 420 IPC thereafter
cognizance has been taken by the learned Magistrate and
summon has been issued on 13.12.2024 while as per verdict of
Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690
Sections 406 and 420 cannot run simultaneously.

4. Learned counsel for the opposite party no. 2 submitted that the
trial court has rightly summoned the accused-applicants after
having proper inquiry.

5. Before going in the merits of the case, it is necessary to discuss
the distinction between mere breach of contract and the offence of
criminal breach of trust and cheating. The Hon'ble Supreme Court
in the case of Delhi Race Club (1940) Ltd. v. State of U.P.,
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                                 2

(2024) 10 SCC 690 has summarized that distinction finely. The
relevant paragraph is quoted as under:

"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. Whereas, for the criminal breach of trust, the property must have
been entrusted to the accused or he must have dominion over it. The property
in respect of which the offence of breach of trust has been committed must be
either the property of some person other than the accused or the beneficial
interest in or ownership' of it must be of some other person. The accused must
hold that property on trust of such other person. Although the offence, i.e. the
offence of breach of trust and cheating involve dishonest intention, yet they
are mutually exclusive and different in basic concept. 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."

6. On the perusal of the records, it appears that the impugned
summoning order dated 13.12.2024 has been passed ignoring the
legal position settled by the Hon'ble Apex Court in the case of the
Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690.
The impugned summoning order does not reflect the application of
the mind and the learned magistrate has failed to properly
appreciate the material available on record and has mechanically
passed the summoning order.

7. Accordingly, the present criminal misc. application succeeds and
is allowed.
8. The summoning order dated 13.12.2024 passed by the Judicial
Magistrate, Meerut Criminal Case No. 425 of 2025 (State Vs.
Sanjay and another), arising out of Case Crime No. 69 of 2024,
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                                                                3

                                    under Sections 406 and 420 I.P.C., P.S. T.P. Nagar, District
                                    Meerut, pending in the Court of Chief Judicial Magistrate, Meerut is
                                    set aside. The matter is remitted back to trial court to pass a fresh
                                    order in the light of Delhi Race Club herein above.

                                    March 18, 2026
                                    Israr
                                                                              (Padam Narain Mishra,J.)




Digitally signed by :-
ISRAR AHMAD
High Court of Judicature at Allahabad