GULSHAN KUMARversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 39188 of 2026

Gulshan Kumar
                                                                   .....Applicant(s)
                                      Versus

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

Counsel for Applicant(s)             : Saurabh Srivastava, Shivam Mishra
Counsel for Opposite Party(s)        : G.A.

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

1. This matter is being taken up out of turn from the category of cases
which have been mentioned in the morning on account of urgency. Heard
learned counsel for parties.

2. Present application has been preferred with the prayer to quash the charge
sheet dated 7.5.2025, cognizance/summoning order dated 15.7.2025 passed
by learned Chief Judicial Magistrate, Ghaziabad as well as entire
proceedings of Case no. 61870 of 2025 (State of U.P. vs. Rahul and others)
arising out of Case Crime no. 0183 of 2025, under Sections 318(4), 316(2),
351(2) BNS, P.S.- Sahibabad, District Ghaziabad.

3. Learned counsel appearing on behalf of applicants 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 (i.e. section 318(4) and 316(2) 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
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     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 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 AGA for the State 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
applicants.
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                                    5. Since, only legal argument has been raised at the behest of applicant,
                                    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 318(4) and 316(2) (i.e. 420 and 406 IPC) cannot go in the same
                                    breath and as such without interfering in any other merit of the present
                                    matter, cognizance/summoning order dated 15.7.2025 passed by learned
                                    Chief Judicial Magistrate, Ghaziabad in Case no. 61870 of 2025 (State of
                                    U.P. vs. Rahul and others) arising out of Case Crime no. 0183 of 2025,
                                    under Sections 318(4), 316(2), 351(2) BNS, P.S.- Sahibabad, District
                                    Ghaziabad, is quashed only in respect of applicant(s) herein. Matter is
                                    hereby remitted back to learned Chief Judicial Magistrate, Ghaziabad 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.



                                                                                         (Saurabh Srivastava,J.)
                                    September 16, 2026
                                    Shaswat




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