SANDEEP BHATIYAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 17724 of 2026

Sandeep Bhatiya
                                                             .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                           :    Amit Tiwari
Counsel for Opposite Party(s)                      :    G.A.

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

1. Heard learned counsel for applicant and learned AGA for the State.

2. Present application has been preferred with the prayer to quash the
chargesheet dated 13.09.2024 and cognizance/summoning order dated
11.12.2025 along with entire proceedings of Case No.2228 of 2025 (State
Vs. Prem Chandra Kesarwani and others), arising out of Case Crime
No.637 of 2023 under Sections 420, 406 IPC, P.S. Kotwali, District
Fatehpur, pending in the court of learned Chief Judicial Magistrate,
Fatehpur.

3. Learned counsel appearing on behalf of applicant 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
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     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."

4. Since the arguments as advanced on behalf of learned counsel for
applicant, are based on legal issue, no notice is required to be issued to
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                                    opposite party no.2.

                                    5. On the other hand, learned A.G.A. have 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.

                                    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 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 11.12.2025
                                    passed in Case No.2228 of 2025 (State Vs. Prem Chandra Kesarwani and
                                    others), arising out of Case Crime No.637 of 2023 under Sections 420,
                                    406 IPC, P.S. Kotwali, District Fatehpur, pending in the court of learned
                                    Chief Judicial Magistrate, Fatehpur, 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).

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

                                    April 30, 2026
                                    Ashish/-

                                                                                      (Saurabh Srivastava,J.)




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