NISHANT KUMAR AND 3 OTHERSversusSTATE OF U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD
              APPLICATION U/S 528 BNSS No. - 37887 of 2025

Nishant Kumar And 3 Others
                                                                 .....Applicant(s)
                                      Versus
State of U.P. and Another
                                                                    .....Opposite
                                                                          Party(s)

Counsel for Applicant(s)          :   Pradeep Kumar
Counsel for Opposite Party(s)     :   Chandrasen Patel,     G.A.,   Mohammad
                                      Khalid, Neha Faridi

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

1. This matter has been taken up out of turn on the mention made by Mr.
Chandrasen Patel, learned counsel for opposite party no.2. He states that he
has tried to serve a notice to the learned counsel for the applicant that this
matter may be taken up out of turn today, but the learned counsel for the
applicants has refused to accept the same. A copy of the said notice has been
placed before this Court which is taken on record.

2. Heard Mr. Chandrasen Patel, learned counsel for the opposite party no.2
and the learned A.G.A. for the State.

3. The present application under Section 528 B.N.S.S. has been filed for
quashing the charge-sheet dated 11th June, 2025, cognizance/summoning
order dated 15th July, 2025 as well as the entire Criminal Case No. 12081 of
2025 (State Vs. Nishant Kumar & Others) arising out of Case Crime No. 55 of
2025 under Sections 3 (5), 61 (2), 316 (5), 316 (5) and 318 (4) B.N.S., Police
Station-Sector 126 Noida, District-Gautum Budh Nagar, pending in the Court
of Additional Chief Judicial Magistrate-II, Gautam Budh Nagar.

4. By means of the present criminal application, it is the case of the applicants
submits that the applicants have been summoned under Sections under
Sections 3 (5), 61 (2), 316 (5), 316 (5) and 318 (4) B.N.S. vide order dated
15th July, 2025. It is further submitted that both Sections 316 (2) and 318 (4)
B.N.S. 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.

5. Per contra, learned counsel for opposite party no.2 as well as learned
A.G.A. could not dispute the settled proposition of law relied upon by the
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learned counsel for the applicants. Learned counsel for opposite party no.2
also submits that in case the cognizance/summoning order dated 15th July,
2025 is set aside and the trial court is directed to pass fresh order taking
cognizance or summoning the accused-applicants he has no objection.

6. 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
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.”


7. 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 316 (2) and 318 (4) B.N.S. cannot ordinarily be
invoked together on the same set of facts. Therefore, the impugned
summoning order dated 15th July, 2025 is not sustainable in law.

8. In view of the aforesaid, cognizance/summoning order dated 15th July,
2025 passed by the Additional Chief Judicial Magistrate-II, Gautam Budh
Nagar, in Criminal Case No. 12081 of 2025 (State Vs. Nishant Kumar &
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                                    Others) arising out of Case Crime No. 55 of 2025 under Sections 3 (5), 61 (2),
                                    316 (5), 316 (5) and 318 (4) B.N.S., Police Station-Sector 126 Noida, District-
                                    Gautum Budh Nagar is hereby set aside.

                                    9. 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) within a period of two
                                    months from today without granting any unnecessary adjournment to either of
                                    the parties.

                                    10. Accordingly, the present application stands partly allowed.
                                    September 21, 2026
                                    Sushil/-
                                                                                            (Madan Pal Singh,J.)




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