JAKI ALIAS JAKI AHMAD ALIAS JAKI AHMAD ANSARIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 32196 of 2025




Jaki Alias Jaki Ahmad Alias Jaki Ahmad Ansari
                                                           .....Applicant(s)
                                    Versus

State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)      : Atmaram        Nadiwal,   Dinesh      Kumar
                                Yadav
Counsel for Opposite Party(s) : G.A.

Court No. - 83



                       HON'BLE SANJIV KUMAR, J.

1. Heard Sri Vivek Kumar Yadav, Advocate holding brief of Sri Dinesh
Kumar Yada, learned Counsel for applicant and learned A.G.A. for the
State.

2. The present application has been preferred with the prayer to quash the
entire proceedings of Case No.7377 of 2024, arising out of Case Crime
No.430 of 2023, under Sections 420, 406, 504 and 506 I.P.C., Police
Station Kotwali, District Maharajganj as well as charge-sheet dated
22.11.2023 and summoning order dated 18.03.2024.

3. Learned Counsel for the applicant submits that the dispute is essentially
civil in nature and has been given a criminal colour with an ulterior
motive. He next submits that the applicant has challenged the impugned
charge-sheet along with cognizance/summoning order and the entire
proceedings of the present case precisely on the ground that Sections 420
and 406 IPC cannot go together on the same set of facts, in view of the
proposition of law settled by the Hon'ble Supreme Court in Delhi Race
Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another,
reported in (2024) 10 SCC 690.

           "38. In our view, the plain reading of the complaint
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                     2


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 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
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                                                                   3


                                              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
                                    applicant.

                                    5. 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 on same facts and as such, cognizance/summoning order dated
                                    18.03.2024 passed by the Chief Judicial Magistrate, Maharajganj in Case
                                    No.7377 of 2024, arising out of Case Crime No.430 of 2023, under
                                    Sections 420, 406, 504 and 506 I.P.C., Police Station Kotwali, District
                                    Maharajganj, is quashed. Matter is hereby remitted back to the Chief
                                    Judicial Magistrate, Maharajganj 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).

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



                                    May 6, 2026
                                    Amit

                                                                                              (Sanjiv Kumar,J.)




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