SACHIN TOMAR ALIAS SACHIN KUMAR TOMARversusSTATE OF U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD

              APPLICATION U/S 528 BNSS No. - 36994 of 2025

Sachin Tomar Alias Sachin Kumar Tomar
                                                                .....Applicant(s)
                                     Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)         :   Akhilesh Shankar Upadhyay, Atharva
                                     Dixit, Pranav Tiwary
Counsel for Opposite Party(s)    :   Dharmendra Kumar Diwakar, G.A., Irshad
                                     Saleem

Court No. - 81
                      HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the applicant, learned counsel for opposite party
no.2 and the learned A.G.A. for the State.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing      the     charge-sheet     dated    16th    September,        2023,
cognizance/summoning order dated 4th April, 2024 as well as the entire in
Criminal Case No. 24805 of 2024 (State of U.P. Vs. Sachin Tomar & Others)
arising out of Case Crime No. 0408 of 2023 under Sections 420, 406, 452,
323, 504 and 506 I.P.C., Police Station-Indrapuram, District-Ghaziabad,
pending in the Court of Chief Judicial Magistrate, Ghaziabad.

3. Learned counsel for the appellant submits that the applicant has been
summoned under Sections under Sections 420, 406, 452, 323, 504 and 506
I.P.C. vide order dated 4th April, 2024. It is further submitted that both
Sections 406 and 420 I.P.C. along with other charging sections cannot go
together in the same breath, in view of the law laid down by the Hon’ble
Supreme Court in Delhi Race Club (1940) Ltd. vs. State of Uttar Pradesh
and Another, reported in (2024) 10 SCC 690. It is thus contended that the
impugned proceedings are liable to be set aside.

4. Per contra, learned counsel for opposite party no.2 as well as learned
A.G.A. have opposed the prayer made in the application; however, they could
not dispute the settled proposition of law relied upon by the learned counsel
for the applicants.

5. The controversy involved in the present case relates to the co-existence of
offences under Sections 406 and 420 I.P.C. on the same set of allegations.
The Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of
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                                  2

Uttar Pradesh and Another (supra) has clarified the legal position. The
relevant portion of the judgment is 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, 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 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.

42. The ingredients of the offence of cheating and criminal breach of trust are
distinct and separate, and the same set of facts ordinarily cannot constitute
both the offences simultaneously.

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
misappropriates 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.”

6. After hearing learned counsel for the parties, perusing the record and
considering the law laid down by the Hon’ble Supreme Court, this Court finds
that offences under Sections 406 and 420 I.P.C. cannot ordinarily be invoked
together on the same set of facts. Therefore, the impugned summoning order
dated 4th April, 2024 is not sustainable in law.

7. In view of the aforesaid, cognizance/summoning order dated 4th April, 2024
passed by the Chief Judicial Magistrate, Ghaziabad in Criminal Case No.
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                                                                     3

                                    24805 of 2024 (State of U.P. Vs. Sachin Tomar & Others) arising out of Case
                                    Crime No. 0408 of 2023 under Sections 420, 406, 452, 323, 504 and 506
                                    I.P.C., Police Station-Indrapuram, District-Ghaziabad is hereby set aside.

                                    8. The matter is remitted back to the court concerned to pass a fresh order on
                                    the question of summoning, if required, in light of the law laid down by the
                                    Hon’ble Supreme Court in Delhi Race Club (supra) prefrabvly within a period
                                    of one month from today without giving any unnecessary adjournment to either
                                    of the parties.

                                    9. Accordingly, the present application stands partly allowed.

                                    September 23, 2026
                                    Sushil/-
                                                                                             (Madan Pal Singh,J.)




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