RAMESH PRAJAPATIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 37571 of 2026

Ramesh Prajapati
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)                 :   Akhilesh Prasad Tripathi
Counsel for Opposite Party(s)            :   G.A.

Court No. - 74
                      HON'BLE DEEPAK VERMA, J.

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

     2. The present application u/s 528 B.N.S.S. has been filed with
     prayer to quash the summoning order dated 04.04.2023 under
     section 420, 406 I. P. C. (Annexure No. 8 to this affidavit) passed
     by the learned Additional Civil Judge (J. D.) Court No. 4,
     Mirzapur as well as bailable warrant dated 09.10.2025 along with
     penalty Rs.10,000/- and its consequential orders (Annexure No. 9
     to this affidavit) passed by the learned Additional Civil Judge (J.
     D.) Third, Mirzapur and entire proceedings of the complaint no.
     620 of 2020 (Chandresh Prajapati Vs. Ramesh Prajapati) pending
     before the learned Additional Civil Judge (J. D.) IIIrd, Mirzapur.

     3. Learned counsel for the applicants submits that applicants are
     innocent and have been falsely implicated in the present case. On
     perusal of complaint, no offence under the alleged Sections is
     made out. The cognizance/summoning order has been passed
     without application of judicial mind. It is next submitted that
     proceedings under Sections 420 and 406 I.P.C. cannot run jointly
     in view of the judgment of Apex Court in Delhi Race Club
     (1940) Ltd. vs. The State of Uttar Pradesh & Anr., 2024 SCC
     OnLine SC 2248, wherein the Apex Court in paragraphs 42 and
     43 has held thus:
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     "42. When dealing with a private complaint, the law enjoins
     upon the magistrate a duty to meticulously examine the
     contents of the complaint so as to determine whether the
     offence of cheating or criminal breach of trust as the case
     may be is made out from the averments made in the
     complaint. The magistrate must carefully apply its mind to
     ascertain whether the allegations, as stated, genuinely
     constitute these specific offences. In contrast, when a case
     arises from a FIR, this responsibility is of the police ? to
     thoroughly ascertain whether the allegations levelled by the
     informant indeed falls under the category of cheating or
     criminal breach of trust. Unfortunately, it has become a
     common practice for the police officers to routinely and
     mechanically proceed to register an FIR for both the offences
     i.e. criminal breach of trust and cheating on a mere
     allegation of some dishonesty or fraud, without any proper
     application of mind.

     43. 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 viz-a-viz
     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 the IPC (now BNS, 2023) are not twins that
     they cannot survive without each other."

4. Considering the argument raised by counsel for the applicant
and in view of judgment passed by Hon'ble The Apex Court in
the case of Delhi Race Club (supra), cognizance/summoning
order dated 04.04.2023, passed by learned Magistrate is without
application of judicial mind.

5. Accordingly, the impugned order dated 04.04.2023, passed by
learned Additional Civil Judge (J. D.) Court No. 4, Mirzapur, in
Complaint No. 620 of 2020 (Chandresh Prajapati Vs. Ramesh
Prajapati) under sections 420, 406 I. P. C, pending before the
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                                           learned Additional Civil Judge (J. D.) IIIrd, Mirzapur, is hereby
                                           quashed.

                                           6. The matter is remanded back to the concerned court with
                                           direction that the concerned court shall pass an appropriate order
                                           within a month from the date of production of certified copy of
                                           this order keeping in view the order of Hon'ble The Apex Court
                                           passed in the case of Delhi Race Club (supra).

                                           7. With aforesaid direction, the present application under Section
                                           528 B.N.S.S. is accordingly allowed.



                                                                                              (Deepak Verma,J.)
                                    September 9, 2026
                                    Meenu Singh




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