MAHENDRA KUMARversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 39894 of 2026

Mahendra Kumar
                                                                   .....Applicant(s)
                                      Versus

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

Counsel for Applicant(s)                         :   Mohammad Danish
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. The present application has been preferred for seeking quashing of entire
proceeding of Old Case no. 777/9 of 2020 now New Case no. 1422 of 2020
(State vs. Arjun and others) arising out of Case Crime no. 472 of 2019 under
sections 420, 406 IPC, PS- Chandausi, District Sambhal and set aside the
cognizance order dated 28.5.2020 passed by learned Chief Judicial
Magistrate, Sambhal along with charge sheet dated 14.2.2020.

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 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
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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 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
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 420 and 406 IPC cannot go in the same breath and as such,
                                    cognizance/summoning order dated 28.5.2020 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 28.5.2020 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 28.5.2020 passed in
                                    New Case no. 1422 of 2020 (State vs. Arjun and others) arising out of Case
                                    Crime no. 472 of 2019 under sections 420, 406 IPC, PS- Chandausi, District
                                    Sambhal is quashed only 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.



                                                                                         (Saurabh Srivastava,J.)
                                    September 21, 2026
                                    Shaswat




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