SALEEM KHANversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 38775 of 2026

Saleem Khan
                                                             .....Applicant(s)
                                    Versus

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

Counsel for Applicant(s)      : Haseen Ahmad, Sipte Husain
Counsel for Opposite Party(s) : Balesh Tripathi, Saumitra Dwivedi,
                                Anupam Dubey, G.A.

Court No. - 79
                  HON'BLE SAURABH SRIVASTAVA, J.

1. Heard learned counsel for applicant and learned A.G.A. for the State.

2. Present application has been preferred with the prayer to quash the
charge-sheet dated 26.11.2025 and cognizance/summoning order dated
27.02.2026 as well as entire proceedings of Criminal Case No.13253 of
2026 (State vs. Fuzail Ahmad and others) arising out of Case Crime
No.304 of 2025, under Sections 316(2), 318(4), 351(2), 316(5) BNS, P.S.
Phase-3, District Gautambudh Nagar, pending in the court of learned
Additional Chief Judicial Magistrate- Ist Gautambudh Nagar.

3. Learned counsel appearing on behalf of applicant has challenged the
impugned charge-sheet along with cognizance/summoning order and
entire proceedings of the present case precisely on the ground that
Sections 316(2), 318(4) BNS 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
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     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 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
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                                    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
                                    applicants 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 316(2), 318(4) BNS cannot go in the same
                                    breath and as such, cognizance/summoning order dated 27.02.2026
                                    passed in Criminal Case No.13253 of 2026 (State vs. Fuzail Ahmad and
                                    others) arising out of Case Crime No.304 of 2025, under Sections 316(2),
                                    318(4), 351(2), 316(5) BNS, P.S. Phase-3, District Gautambudh Nagar,
                                    pending in the court of learned Additional Chief Judicial Magistrate -Ist
                                    Gautambudh Nagar is hereby quashed. 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).

                                    7. Accordingly, the instant application stands allowed in part.
                                    September 28, 2026
                                    Ashish/-

                                                                                      (Saurabh Srivastava,J.)




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