Allahabad High Court
MUNISH AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 420 and 406 IPC cannot co‑exist in the same charge, rendering the cognizance order dated 27‑April‑2017 void with respect to the applicants.
Summary
The applicants filed an application under Section 528 of the Code of Criminal Procedure seeking to quash the cognizance and charge sheet in State v. Gopal (Case No. 1013 of 2017) which alleged offences under Sections 420, 406, 504 and 506 IPC. They contended that Sections 420 (cheating) and 406 (criminal breach of trust) cannot be concurrently charged on the same facts, relying on the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024 SCC 690). The State opposed the prayer but did not dispute the settled legal principle. The Court examined the Supreme Court judgments, including the 2024 decision and the 2025 Kanishk Sinha case, and held that the earlier cognizance order dated 27‑April‑2017 must be set aside insofar as the applicants are concerned. The matter was remitted to the lower court to consider fresh cognizance if required, and the application was allowed in part.
Issues considered
- Whether Sections 420 and 406 IPC can be charged together for the same set of facts.
- Whether the cognizance order dated 27‑April‑2017 is liable to be set aside in view of the Supreme Court’s 2024 judgment.
- Whether the Supreme Court’s decision operates retrospectively to affect pending proceedings.
Legislation cited
- Indian Penal Code — s. 406, 420, 504, 506
Subjects
- cheating
- criminal breach of trust
- IPC sections 420 and 406
- cognizance order
- quash
- retrospective effect
- Supreme Court precedent
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 31222 of 2026
Munish And 3 Others
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Indrajeet Kumar Shukla, Shubham
Dwivedi, Vinay Kumar Mishra
Counsel for Opposite Party(s) : G.A.
Court No. - 79
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for the applicants and learned AGA for the State.
2. The present application has been preferred for seeking quashing of entire
proceeding of Case no. 1013 of 2017 (State vs. Gopal and others) arising
out of Case Crime no. 2457 of 2013 under sections 420, 406, 504, 506 IPC,
PS- Baradari, District Bareilly including cognizance order dated 27.4.2017
passed by learned Additional Chief Judicial Magistrate, Court no. 1, Bareilly
and charge sheet dated 14.1.2017.
3. Learned counsel appearing on behalf of applicant has challenged the
impugned charge sheet 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
NA528 No. 31222 of 2026
2
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
applicants.
5. Since, only legal argument has been raised at the behest of applicant,
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3
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 27.4.2017 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 27.4.2017 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 27.4.2017 passed in
Case no. 1013 of 2017 (State vs. Gopal and others) arising out of Case
Crime no. 2457 of 2013 under sections 420, 406, 504, 506 IPC, PS-
Baradari, District Bareilly is quashed only in respect of applicant(s) herein.
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.
(Saurabh Srivastava,J.)
September 2, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
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