SANJEEV KUMAR SHARMAversusSTATE OF U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD

              APPLICATION U/S 528 BNSS No. - 29692 of 2025

Sanjeev Kumar Sharma
                                                               .....Applicant(s)
                                     Versus
State of U.P. and Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)         :   Deepak Singh, Abhinav Prasad, Shyam
                                     Singh
Counsel for Opposite Party(s)    :   G.A.

Court No. - 81
                      HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the applicant and the learned A.G.A. for the
opposite party nos. 1 and 2, as opposite party no.2 has lodged the first
information report in his official capacity as Station House Officer of Police
Station-Sachendi, District-Kanpur Nagar.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing the cognizance/summoning order dated 29th March, 2022 as well as
the entire Criminal Case No. 15119 of 2022 (State of U.P. Vs. Sanjeev Kumar
Sharma) arising out of Case Crime No. 302 of 2019, under Sections 420 and
406 I.P.C., Police Station-Sachendi, District-Kanpur Nagar, pending in the
Court of Additional Chief Judicial Magistrate, Court No.3., Kanpur Nagar.

Learned counsel for the appellant submits that the applicant has been
summoned under Sections under Sections 420 and 406 I.P.C. vide order
dated 29th March, 2022. It is further submitted that both Sections 406 and 420
I.P.C. cannot go together in the same breath, in view of the law laid down by
the Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of Uttar
Pradesh and Another, reported in (2024) 10 SCC 690. It is thus contended
that the impugned proceedings are liable to be set aside.

4. Per contra, learned counsel for opposite party no.2 as well as learned
A.G.A. have opposed the prayer made in the application; however, they could
not dispute the settled proposition of law relied upon by the learned counsel
for the applicants.

5. The controversy involved in the present case relates to the co-existence of
offences under Sections 406 and 420 I.P.C. on the same set of allegations.
The Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of
Uttar Pradesh and Another (supra) has clarified the legal position. The
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                                  2

relevant portion of the judgment is 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 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 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.

42. The ingredients of the offence of cheating and criminal breach of trust are
distinct and separate, and the same set of facts ordinarily cannot constitute
both the offences simultaneously.

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
misappropriates 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.”

6. After hearing learned counsel for the parties, perusing the record and
considering the law laid down by the Hon’ble Supreme Court, this Court finds
that offences under Sections 406 and 420 I.P.C. cannot ordinarily be invoked
together on the same set of facts. Therefore, the impugned summoning order
dated 29th August, 2024 is not sustainable in law.

7. In view of the aforesaid, cognizance/summoning order dated 29th March,
2022 passed by the Additional Chief Judicial Magistrate, Court No.3, Kanpur
Nagar in Criminal Case No. 15119 of 2022 (State of U.P. Vs. Sanjeev Kumar
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                                                                     3

                                    Sharma) arising out of Case Crime No. 302 of 2019, under Sections 420 and
                                    406 I.P.C., Police Station-Sachendi, District-Kanpur Nagar is hereby set aside.

                                    8. The matter is remitted back to the court concerned to pass a fresh order on
                                    the question of summoning, if required, in light of the law laid down by the
                                    Hon’ble Supreme Court in Delhi Race Club (supra) preferably within a period
                                    of of one month from today without granting any unnecessary adjournment to
                                    either of the parties.

                                    9. Accordingly, the present application stands partly allowed.

                                    10. Counter affidavit filed on behalf of the State in the Court today is taken on
                                    record.

                                    September 23, 2026
                                    Sushil/-
                                                                                              (Madan Pal Singh,J.)




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