Allahabad High Court
SUBHPREETversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 406 and 420 of the IPC are mutually exclusive and cannot be alleged together; therefore, the cognizance‑summoning order is set aside.
Summary
The applicant Subhpreet filed a Section 528 application seeking to quash the chargesheet and the cognizance‑summoning order dated 30 July 2022 in a case where he was charged under IPC Sections 406 (criminal breach of trust) and 420 (cheating). The applicant argued that, according to the Supreme Court’s decision in Delhi Race Club (1940) Ltd. v. State of Uttar Pradesh (2024 10 SCC 690), the two offences are mutually exclusive and cannot be alleged together. The State opposed the prayer but could not refute the settled legal principle. The High Court examined the record, applied the Supreme Court’s ratio that Sections 406 and 420 cannot coexist in the same set of facts, and held that the earlier cognizance order was invalid. Consequently, the court set aside the cognizance‑summoning order and remitted the matter to the lower court for fresh consideration, if required. The application was allowed in part.
Issues considered
- Whether IPC Sections 406 and 420 can be concurrently applied to the same facts.
- Whether the cognizance‑summoning order dated 30 July 2022 is vitiated by the Supreme Court’s later decision in Delhi Race Club (2024).
- Whether the Supreme Court’s judgment operates retrospectively to affect pending proceedings.
Legislation cited
- Indian Penal Code — s. 406, 420
Subjects
- criminal breach of trust
- cheating
- IPC 406
- IPC 420
- co‑accusation
- retrospective effect of judgment
- Section 528 application
- quash chargesheet
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 18760 of 2026
Subhpreet
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Mohit Kumar Baisla
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 23.06.2022 and cognizance/summoning order dated
30.07.2022 as well as entire proceedings of Case No.220 of 2022, arising
out of Case Crime No.055 of 2022, under Sections 406 and 420 IPC,
Police Station Hastinapur, District Meerut, pending before the Judicial
Magistrate-III, Meerut.
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 IPC, is committed by the accused, then in the same breath
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2
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
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proposition of law as relied upon by the learned counsel appearing for
applicant.
5. 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
opposite party no.2.
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 30.07.2022 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 30.07.2022 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 30.07.2022 passed
in Case No.220 of 2022, arising out of Case Crime No.055 of 2022, under
Sections 406 and 420 IPC, Police Station Hastinapur, District Meerut,
pending before the Judicial Magistrate-III, Meerut, is set aside. 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
Ashish/-
(Saurabh Srivastava,J.)
Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad
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