Allahabad High Court
ARVIND TRIPATHI AND ANOTHERversusSTATE OF U.P. AND ANOTHER
- Decided
- Bench
- SAURABH SRIVASTAVA
Holding
Sections 406 and 420 IPC are mutually exclusive and cannot be applied together, rendering the cognizance order dated 16.01.2023 invalid.
Summary
The applicants filed an application under Section 528 seeking to quash the charge‑sheet, cognizance order and related proceedings in a case where they were charged under Sections 406 and 420 of the IPC. The applicants argued, relying on the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh (2024), that the two offences are mutually exclusive and cannot be alleged together. The State opposed the prayer but did not contest the settled law. The High Court examined the Supreme Court judgments, including Delhi Race Club and Kanishk Sinha v. State of West Bengal (2025), and held that the earlier cognizance order dated 16‑01‑2023 was contrary to law. Consequently, the court set aside the cognizance/summoning order and quashed the charge‑sheet for the applicants, remitting the matter to the lower court for fresh consideration if required. The application was allowed in part.
Issues considered
- Can Sections 406 and 420 of the IPC be invoked together for the same set of facts?
- Is the cognizance/summoning order dated 16.01.2023 valid in light of the Supreme Court’s decision in Delhi Race Club Ltd. v. State of Uttar Pradesh?
- Should the application under Section 528 to quash the charge‑sheet and related orders be granted?
Legislation cited
- Indian Penal Code — s. 406, 420
Subjects
- criminal breach of trust
- cheating
- IPC Section 406
- IPC Section 420
- mutual exclusivity of offences
- quash of charge‑sheet
- retrospective effect of Supreme Court judgment
Judgment
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 41648 of 2026
Arvind Tripathi And Another
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite
Party(s)
Counsel for Applicant(s) : Harshit Pratap Singh
Counsel for Opposite Party(s) : G.A.
Court No. - 79
HON'BLE SAURABH SRIVASTAVA, J.
1. This matter has been taken up in the mentioned category. Heard learned
counsel for applicants and learned AGA for the State.
2. Present application has been preferred with the prayer to quash the
charge-sheet dated 29.11.2022 and cognizance/summoning order dated
16.01.2023 along with non-bailable warrant dated 31.07.2026 as well as
entire proceedings of Case No.37 of 2023 (State Vs. Amit Agrawal and
others) arising out of Case Crime no.64 of 2022, under Sections 406, 420
IPC, P.S. Dakore, District Jalaun, pending before learned court of Civil
Judge (SD)/FTC, Jalaun at Orai.
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
NA528 No. 41648 of 2026
2
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
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3
applicant.
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 16.01.2023 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 16.01.2023 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.in the
7. In view thereof, cognizance/summoning order dated 16.01.2023 as well as
other consequential proceedings issued in Case No.37 of 2023 (State Vs.
Amit Agrawal and others) arising out of Case Crime no.64 of 2022, under
Sections 406, 420 IPC, P.S. Dakore, District Jalaun, pending before learned
court of Civil Judge (SD)/FTC, Jalaun at Orai, 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 29, 2026
Saif
(Saurabh Srivastava,J.)
Digitally signed by :-
SHAIKH SAIF ABDIN
High Court of Judicature at Allahabad
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