Allahabad High Court
ABHISHEK SONIversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
The cognizance/summoning order dated 3‑Jan‑2024 is quashed insofar as it pertains to the applicant, and the matter is remitted for fresh cognizance in light of the Supreme Court’s decision that Sections 420 and 406 IPC cannot be applied together.
Summary
The applicant, Abhishek Soni, filed an application under Section 528 seeking to quash the entire criminal proceeding (Case No. 1048 of 2024) that alleged offences under Sections 420, 406, 506 and 120‑B IPC. The ground relied upon was the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024 10 SCC 690), which holds that the offences of cheating (Section 420) and criminal breach of trust (Section 406) cannot coexist in the same set of facts. The High Court examined this precedent, noted its retrospective operation per Kanishk Sinha v. State of West Bengal (2025 SCC Online SC 443), and concluded that the cognizance order dated 3‑Jan‑2024 was legally untenable. Consequently, the court quashed the cognizance/summoning order with respect to the applicant and remitted the matter to the lower court for a fresh cognizance order consistent with the Supreme Court’s law. The application was allowed in part.
Issues considered
- Whether a cognizance order can stand when the charge sheet includes both Sections 420 and 406 IPC, given the Supreme Court’s ruling that the two offences cannot coexist.
Legislation cited
- Indian Penal Code — s. 120-B, 406, 420, 506, 528
Subjects
- Section 528 application
- quashing of criminal proceedings
- cheating
- criminal breach of trust
- IPC Sections 420 and 406
- retrospective effect of judgment
- cognizance order
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 40401 of 2026
Abhishek Soni
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Lavlesh Kumar Shukla
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 Case no. 1048 of 2024 (State vs. Abhishek Soni and others)
arising out of Case Crime no. 222 of 2022 under sections 420, 406, 506,
120-B IPC, PS- Naubasta, District Kanpur Nagar and set aside the
cognizance order dated 03.01.2024 passed by learned Special Chief Judicial
Magistrate, Kanpur Nagar along with NBW order dated 18.8.2026 and
charge sheet dated 27.12.2023.
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
NA528 No. 40401 of 2026
2
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 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 3.1.2024 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 3.1.2024 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 3.1.2024 passed in
Case no. 1048 of 2024 (State vs. Abhishek Soni and others) arising out of
Case Crime no. 222 of 2022 under sections 420, 406, 506, 120-B IPC, PS-
Naubasta, District Kanpur Nagar 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 29, 2026
Shaswat
Digitally signed by :-
SHASWAT SINGH
High Court of Judicature at Allahabad
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