HARSH PATEL AND 2 OTHERSversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 34817 of 2026

Harsh Patel And 2 Others
                                                             .....Applicant(s)
                                   Versus
State of U.P. and Another
                                                                .....Opposite
                                                                      Party(s)

Counsel for Applicant(s)                            :    Akshat Jain
Counsel for Opposite Party(s)                       :    G.A.

Court No. - 80
                 HON'BLE NAND PRABHA SHUKLA, J.

1. Heard Sri Akshat Jain, learned counsel for the applicants, learned AGA
for the State and perused the record.

2. The present application under section 528 B.N.S..S has been filed with a
prayer to allow this application and to quash the charge sheet dated
21.03.2024, cognizance and summoning order dated 06.07.2024 and all the
further proceedings of Case No. 55342 of 2024 (State vs. Harsh Patel and
Others) arising out of Case Crime No. 0460 of 2013, under sections 420, 406
and 420 IPC, Police Station Shivpur, District Varanasi, pending before the
Court of learned Civil Judge (Junior Division)/FTC-14, Varanasi.

3. It has been submitted by learned counsel for the applicants that the First
Information Report of this case has been lodged making false allegations. It
is further submitted that by impugned order dated 06.07.2024, applicants
have been summoned for offence under sections 420, 406, 506 I.P.C and as
per law laid down in case of Delhi Race Club (1940) Ltd. and Others Vs.
State of Uttar Pradesh and Another, 2024 SCC Online SC 2248, offence
of cheating viz-a-viz criminal breach of trust are independent and distinct
and both cannot exist simultaneously on the same set of facts and are
antithetical to each other and on this account alone the impugned
summoning order has been passed without any proper application of mind
and is liable to be set aside.

4. Perusal of record shows that by impugned order dated 06.07.2024,
applicants have been summoned for the offence under sections 420, 406, 506
I.P.C. As stated above, in case of Delhi Race Club (supra), it has been held
by the Hon'ble Apex Court that offence of cheating viz-a-viz criminal breach
of trust are independent and distinct and both cannot exist simultaneously in
                                                                                              NA528 No. 34817 of 2026
                                                                     2

                                    same set of facts and that they are antithetical to each other. Thus, it is clear
                                    that impugned summoning order is not sustainable in law.

                                    5. In view thereof, the cognizance/summoning order dated 06.07.2024,
                                    passed by the learned Additional Chief Judicial Magistrate-VII, Varanasi, is
                                    hereby quashed and the matter is remitted back to the Court concerned to
                                    meticulously examine the contents of the allegations and pass a fresh order
                                    of taking cognizance in the light of the proposition of law settled by the
                                    Hon'ble Supreme Court in the case of Delhi Race Club (supra),
                                    expeditiously, preferably within a period of six weeks, if there is no other
                                    legal impediment.

                                    6. Hence, the application u/s 528 B.N.S.S. is partly allowed.
                                    September 9, 2026
                                    Puspendra
                                                                                        (Nand Prabha Shukla,J.)




Digitally signed by :-
PUSPENDRA NARAYAN SINGH
High Court of Judicature at Allahabad