SMT. SHYAMO YADAV @ GEETA @ SIKHA AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 36937 of 2026


Smt. Shyamo Yadav @ Geeta @ Sikha And
Another                                                      .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                     :   Atul Kumar Singh
Counsel for Opposite Party(s)                :   G.A.

Court No. - 79
                  HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for applicants and learned A.G.A. for the State.

2. Present application has been preferred with the prayer to quash the
charge-sheet dated 12.05.2023 and cognizance/summoning order dated
28.06.2023 as well as entire proceedings of Criminal Case No.5314 of
2023 (State vs. Smt. Shyamo Yadav @ Geeta @ Sikha and others) arising
out of Case Crime No.292 of 2022, under Sections 406, 420, 506 IPC,
against applicant No.1 and under Sections 420, 406, 506, 120B IPC,
against applicant No.2, P.S. Link Road, District Ghaziabad, pending in
the court of learned Additional Chief Judicial Magistrate, Court No.3,
Ghaziabad.

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
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                          2


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
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."
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                                    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. 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 28.06.2023
                                    passed in Criminal Case No.5314 of 2023 (State vs. Smt. Shyamo Yadav
                                    @ Geeta @ Sikha and others) arising out of Case Crime No.292 of 2022,
                                    under Sections 406, 420, 506 IPC, against applicant No.1 and under
                                    Sections 420, 406, 506, 120B IPC, against applicant No.2, P.S. Link
                                    Road, District Ghaziabad, pending in the court of learned Additional
                                    Chief Judicial Magistrate, Court No.3, Ghaziabad is hereby 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.
                                    September 11, 2026
                                    Ashish/-

                                                                                      (Saurabh Srivastava,J.)




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