Allahabad High Court

SARASVATI DEVI @ SARASVATI KUMARIversusSTATE OF U.P. AND ANOTHER

Decided: 10 September 2026
Bench: SAURABH SRIVASTAVA

Holding

Sections 406 and 420 IPC cannot co‑exist in the same set of facts, rendering the cognizance order dated 15‑11‑2021 void.

Summary

The applicant filed an application under Section 528 seeking to quash the chargesheet and the cognizance/summoning order dated 15‑11‑2021 in a case involving offences under Sections 406, 420 and 506 IPC. The applicant argued that, per the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024) 10 SCC 690, Sections 406 (criminal breach of trust) and 420 (cheating) cannot be concurrently applied to the same set of facts. The High Court accepted this proposition, held that the earlier cognizance order was contrary to the Supreme Court’s ratio, and noted that the Supreme Court’s judgment is retrospective unless expressly stated otherwise, citing Kanishk Sinha v. State of West Bengal (2025) SCC Online SC 443. Consequently, the court quashed the cognizance order with respect to the applicant and remitted the matter to the lower court for a fresh order if required. The application was allowed in part.

Issues considered

Can Sections 406 and 420 IPC be charged together for the same transaction?
Is the cognizance/summoning order dated 15‑11‑2021 vitiated by the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh?
Does the Supreme Court’s judgment operate retrospectively in this context?

Legislation cited

Indian Penal Code — s. 406, 420, 506

Subjects

Section 406 IPC
Section 420 IPC
Cheating
Criminal breach of trust
Quash of chargesheet
Cognizance order
Retrospective effect
Supreme Court precedent

Judgment

HIGH COURT OF JUDICATURE AT ALLAHABAD

APPLICATION U/S 528 BNSS No. - 38316 of 2026

Sarasvati Devi @ Sarasvati Kumari
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)

Counsel for Applicant(s) : Amit Kumar Malviya, Rishi Kesh
Malviya
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
chargesheet dated 24.07.2021 and cognizance/summoning order dated
15.11.2021 as well as entire proceedings of Case No.21624 of 2021 (State
Vs. Kishan Pratap Singh and others), arising out of Case Crime no.521 of
2018, under Sections 406, 420, 506 IPC, P.S. Hathras Gate, District-
Hathras, pending in the court of learned Chief Judicial Magistrate, Hathras.

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
NA528 No. 38316 of 2026
2

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."

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.
NA528 No. 38316 of 2026
3

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 15.11.2021 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 15.11.2021 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
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 15.11.2021 passed
in Case No.21624 of 2021 (State Vs. Kishan Pratap Singh and others),
arising out of Case Crime no.521 of 2018, under Sections 406, 420, 506 IPC,
P.S. Hathras Gate, District- Hathras, pending in the court of learned Chief
Judicial Magistrate, Hathras, 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

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