Allahabad High Court
MITHILESH KUMARIversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The court held that Sections 420 and 406 IPC (now BNS 318(4) and 316(2)) cannot be invoked together for the same conduct, and therefore the cognizance order is quashed.
Summary
Mithilesh Kumari filed an application under Section 528 BNS seeking to quash a cognizance order dated 14‑08‑2025 in State of U.P. v. Mithilesh Kumari (Case No. 11889 of 2025). The applicant argued that the charge sheet improperly invoked both Sections 318(4) and 316(2) BNS (equivalent to IPC Sections 420 and 406) for the same set of facts, contrary to the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024 10 SCC 690) which holds that cheating and criminal breach of trust cannot coexist. The High Court accepted this legal argument, quashed the cognizance order as it pertained to the applicant, and remitted the matter to the lower court to consider a fresh order in line with the Supreme Court’s ratio. The application was allowed in part.
Issues considered
- Whether Sections 318(4) and 316(2) BNS (IPC Sections 420 and 406) can be concurrently applied to the same facts.
- Whether the cognizance order dated 14‑08‑2025 is vitiated on the ground of improper simultaneous charging.
Legislation cited
- B.N.S. — s. 316(2), 318(4), 351(2), 528
- Indian Penal Code — s. 405, 406, 415, 420
Subjects
- cognizance
- quash
- cheating
- criminal breach of trust
- Section 528 BNS
- IPC Sections 420 and 406
- Supreme Court precedent
- procedural law
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 17151 of 2026
Mithilesh Kumari
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Lok Pal Singh, Vinay Kumar Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. At the very outset, learned counsel for applicant prays to amend the prayer
clause by way of challenging cognizance order dated 14.8.2025 which has
been inadvertently left at the time of filing of instant application.
2. Prayer so made is allowed. Necessary incorporation shall be carried out
during course of the day.
3. Heard learned counsel for applicant and learned AGA for the State.
4. Present application has been preferred with the prayer to quash the
cognizance order dated 14.8.2025 passed by learned Civil Judge (Junior
Division)/F.T.C./ Judicial Magistrate/14th Finance Commission, Auraiya as
well as entire proceedings of Case no. 11889 of 2025 (State of U.P. vs.
Mithilesh Kumari and others) arising out of Case Crime no. 333 of 2025,
under Sections 318(4), 316(2), 351(2) BNS, P.S.- Ajitmal, District Auraiya.
5. 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 (i.e. section 318(4) and 316(2) BNS) 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
NA528 No. 17151 of 2026
2
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 AGA for the State has vehemently opposed the
NA528 No. 17151 of 2026
3
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, only legal argument has been raised at the behest of applicant,
process to issue notice to opposite party no. 2 is hereby dispensed with.
8. 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 318(4) and 316(2) (i.e. 420 and 406 IPC) cannot go in the same
breath and as such without interfering in any other merit of the present
matter, cognizance/summoning order dated 14.8.2025 passed by learned
Civil Judge (Junior Division)/F.T.C./ Judicial Magistrate/14th Finance
Commission, Auraiya in Case no. 11889 of 2025 (State of U.P. vs. Mithilesh
Kumari and others) arising out of Case Crime no. 333 of 2025, under
Sections 318(4), 316(2), 351(2) BNS, P.S.- Ajitmal, District Auraiya, is
quashed only in respect of applicant(s) herein. Matter is hereby remitted
back to learned Civil Judge (Junior Division)/F.T.C./ Judicial
Magistrate/14th Finance Commission, Auraiya 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).
9. Accordingly, the instant application stands allowed in part.
(Saurabh Srivastava,J.)
May 5, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
Checking your session…