Allahabad High Court

MOHAMMAD ARSHADversusSTATE OF U.P. AND ANOTHER

Decided: 5 May 2026
Bench: SAURABH SRIVASTAVA

Holding

Sections 406 and 420 IPC cannot be concurrently applied to the same facts, rendering the cognizance order dated 21‑12‑2023 invalid.

Summary

The applicant filed an application under Section 528 of the BNSS seeking to quash the chargesheet and the cognizance/summoning order dated 21‑12‑2023 in a case where the accused was charged under Sections 406 and 420 of the Indian Penal Code. The applicant contended, relying on the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024) 10 SCC 690, that the two offences – criminal breach of trust and cheating – are mutually exclusive and cannot be alleged together. The State opposed the prayer but did not dispute the settled law. The High Court, after examining the record and the Supreme Court judgments, held that the cognizance order was untenable because the two sections cannot coexist, and consequently set aside the order and remitted the matter for fresh consideration. The application was allowed in part, resulting in the quashing of the cognizance order.

Issues considered

Can Sections 406 and 420 of the IPC be invoked together for the same set of facts?
Whether the cognizance/summoning order dated 21‑12‑2023 should be set aside on the ground of the above legal principle?
Does the Supreme Court’s judgment in Delhi Race Club Ltd. v. State of Uttar Pradesh apply retrospectively to orders passed before its date?

Legislation cited

Indian Penal Code — s. 406, 420

Subjects

criminal breach of trust
cheating
IPC 406
IPC 420
co‑existence of offences
quash of cognizance
Section 528
Supreme Court precedent

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 18629 of 2026

Mohammad Arshad
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Jata Shankar
Counsel for Opposite Party(s) : G.A.

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

1. This matter has been taken up in the mentioned category. 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 24.09.2023 and cognizance/summoning order dated
21.12.2023 as well as entire proceedings of Case No.41593 of 2023 (State
Vs. Jishan and Another) arising out of Case Crime no.472 of 2023, under
Sections 406, 420 IPC, P.S. Nayi Mandi, District- Muzaffarnagar, pending in
the court of learned Additional Chief Judicial Magistrate, Court No.1,
Muzaffarnagar.

3. Learned counsel appearing on behalf of applicant 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 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
NA528 No. 18629 of 2026
2

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."

4. 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
NA528 No. 18629 of 2026
3

applicant.

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

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 21.12.2023 is liable to be set aside.
Although judgment of Hon'ble Supreme Court rendered in the case of Delhi
Race Club (Supra) has been passed on 23.08.2024 and cognizance of
offence in the present case, has been taken on dated 21.12.2023 and as per
the judgment rendered by Hon'ble the Apex Court in the case of Kanishk
Sinha and another Vs. The State of West Bengal and another [2025 SCC
Online SC 443], the judgment of Hon'ble the Apex Court will always be
retrospective in nature unless the judgment itself specifically states that the
judgment will operate prospectively.

7. In view thereof, cognizance/summoning order dated 21.12.2023 passed
in Case No.41593 of 2023 (State Vs. Jishan and Another) arising out of Case
Crime no.472 of 2023, under Sections 406, 420 IPC, P.S. Nayi Mandi,
District- Muzaffarnagar, pending in the court of learned Additional Chief
Judicial Magistrate, Court No.1, Muzaffarnagar, 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).

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

May 6, 2026
Saif
(Saurabh Srivastava,J.)

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

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