BADARI PRASAD GUPTA @ MAMA BROKERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 34588 of 2026

Badari Prasad Gupta @ Mama Broker
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                 :   Surendra Kumar Verma
Counsel for Opposite Party(s)            :   G.A.

Court No. - 79
                  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 25.05.2024 and cognizance/summoning order dated
22.11.2024 along with entire proceedings of Case No.115722 of 2024
(State Vs. Vijay Rastogi and others) arising out of Case Crime no. 232 of
2024, under Sections 406, 420 IPC, P.S.- Chakeri, District Kanpur Nagar,
pending in the court of learned Chief Judicial Magistrate, Kanpur Nagar.

3. Learned counsel appearing on behalf of applicant has challenged the
impugned chargesheet along with cognizance/summoning order 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 it
     cannot be said that the accused has also committed the offence
     of cheating as defined and explained in Section 415 IPC,
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    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. 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.

5. On the other hand, learned A.G.A. has vehemently opposed the prayer
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                                    sought through the instant application but unable to dispute the settled
                                    proposition of law as relied upon by the learned counsel appearing for
                                    applicant.

                                    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 22.11.2024
                                    passed in Case No.115722 of 2024 (State Vs. Vijay Rastogi and others)
                                    arising out of Case Crime no. 232 of 2024, under Sections 406, 420 IPC,
                                    P.S.- Chakeri, District Kanpur Nagar, pending in the court of learned
                                    Chief Judicial Magistrate, Kanpur Nagar, is quashed. 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).

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



                                                                                      (Saurabh Srivastava,J.)
                                    September 8, 2026
                                    Vivek Kr.




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