Allahabad High Court
ASHISH KUMAR CHATURVEDI AND 4 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 420 and 406 IPC cannot be applied to the same facts; consequently, the cognizance order is set aside.
Summary
The applicants filed an application under Section 528 seeking to quash the chargesheet and the cognizance/summoning order dated 07‑07‑2023 in a case where they were charged under Sections 420 and 406 of the IPC. They argued that, according to the Supreme Court’s decision in Delhi Race Club (2024) 10 SCC 690, the offences of cheating (Section 420) and criminal breach of trust (Section 406) are mutually exclusive and cannot be prosecuted together. The State opposed the prayer but could not refute the settled legal principle. The High Court, after examining the record and the Supreme Court judgments, held that the two sections cannot coexist in the same set of facts and therefore set aside the cognizance order. The matter was remitted to the lower court to consider fresh cognizance, if any, in line with the Supreme Court’s ruling. The application was allowed in part.
Issues considered
- Whether Sections 420 and 406 IPC can be invoked together for the same conduct.
- Whether the cognizance/summoning order dated 07‑07‑2023 should be set aside in view of the Supreme Court’s decision in Delhi Race Club (2024).
Legislation cited
- Indian Penal Code — s. 406, 420
Subjects
- cheating
- criminal breach of trust
- IPC Section 420
- IPC Section 406
- double prosecution
- cognizance order
- quash application
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 19379 of 2026
Ashish Kumar Chaturvedi And 4 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Chandrika Prasad Shukla
Counsel for Opposite Party(s) : G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for applicants and learned AGA for the State.
2. Present application has been preferred with the prayer to quash the
chargesheet dated 31.12.2022 and cognizance/summoning order dated
07.07.2023 as well as entire proceedings of Case No.9505 of 2023 (State
Vs. Ashish Kumar Chaturvedi and others), arising out of Case Crime no.
558 of 2022, under Sections 420, 406 IPC, P.S.- Sungadhi, District
Pilibhit, pending in the court of learned Chief Judicial Magistrate, District
Pilibhit.
3. 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 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
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2
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."
4. On the other hand, learned A.G.A. has vehemently opposed the prayer
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3
sought through the instant application but unable to dispute the settled
proposition of law as relied upon by the learned counsel appearing for
applicants.
5. Since the arguments as advanced on behalf of learned counsel for
applicants, 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 07.07.2023 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 07.07.2023 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 07.07.2023 passed
in Case No.16703 of 2022 (State Vs. Dr. Abhishek Yadav and others),
arising out of Case No.9505 of 2023 (State Vs. Ashish Kumar Chaturvedi
and others), arising out of Case Crime no. 558 of 2022, under Sections
420, 406 IPC, P.S.- Sungadhi, District Pilibhit, pending in the court of
learned Chief Judicial Magistrate, District Pilibhit, 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 12, 2026
Ashish/-
(Saurabh Srivastava,J.)
Digitally signed by :-
ASHISH KUMAR SINGH
High Court of Judicature at Allahabad
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