SHAILENDRA KUMARversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 36651 of 2026

Shailendra Kumar
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)      : Mohammad Zafar Yab Khan, Shahroze
                                Khan
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 10.01.2021 and cognizance/summoning order dated
23.02.2021 as well as entire proceedings of Case No.2009 of 2021, (State
Vs. Shailendra Kumar and others), arising out of Case Crime no.234 of
2020, under Sections 406, 420 IPC, P.S.- Shohratgarh, District Siddharth
Nagar, pending in the court of learned Additional Chief Judicial
Magistrate/FTC, Siddharth Nagar.

3. Learned counsel appearing on behalf of applicant has challenged the
impugned chargesheet 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
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     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
     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
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                                    proposition of law as relied upon by the learned counsel appearing for
                                    applicant.

                                    5. Since the legal issue has been raised by learned counsel for the
                                    applicants and as such 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 23.02.2021 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 23.02.2021 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 23.02.2021 passed
                                    in Case No.2009 of 2021, (State Vs. Shailendra Kumar and others),
                                    arising out of Case Crime no.234 of 2020, under Sections 406, 420 IPC,
                                    P.S.- Shohratgarh, District Siddharth Nagar, pending in the court of
                                    learned Additional Chief Judicial Magistrate/FTC, Siddharth 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).

                                    8. Accordingly, the instant application stands allowed in part.
                                    September 10, 2026
                                    Ashish/-

                                                                                       (Saurabh Srivastava,J.)




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