AKBAR ALIversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

            APPLICATION U/S 528 BNSS No. - 38293 of 2026

Akbar Ali
                                                              .....Applicant(s)
                                   Versus
State Of U.P. And Another
                                                                  .....Opposite
                                                                        Party(s)

Counsel for Applicant(s)                     :   Shashi Dhar Shukla
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 entire
proceeding of Criminal Case No.932 of 2023 (State Vs. Akbar Ali) arising
out of Case Crime No.356 of 2021, under sections 406, 420 I.P.C., Police
Station Khalilabad, District Sant Kabir Nagar, including charge-sheet dated
28.08.2021 and cognizance/summoning order dated 16.01.2023 passed by
learned Chief Judicial Magistrate, Sant Kabir 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 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
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                                 2

     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
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 applicant
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 16.01.2023 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 16.01.2023 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
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                                                                    3

                                    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 16.01.2023 passed
                                    in Criminal Case No.932 of 2023 (State Vs. Akbar Ali) arising out of Case
                                    Crime No.356 of 2021, under sections 406, 420 I.P.C., Police Station
                                    Khalilabad, District Sant Kabir Nagar, is quashed, in respect of applicant(s)
                                    herein. 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 11, 2026
                                    Saif
                                                                                         (Saurabh Srivastava,J.)




Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad