AVANISH KUMAR MITTAL AND ANOTHERversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD

           APPLICATION U/S 528 BNSS No. - 41683 of 2026

Avanish Kumar Mittal And Another
                                                                    .....Applicant(s)
                                      Versus
State of U.P. and Another
                                                                        .....Opposite
                                                                              Party(s)

Counsel for Applicant(s)                                :    Rahul Shukla
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 30.12.2020 and cognizance/summoning order dated
28.05.2024 as well as entire proceedings of Case No.1479 of 2024 (State Vs.
Sonakshi and others), arising out of Case Crime no.216 of 2018, under
Sections 406, 420 IPC, P.S. Masoori, District Ghaziabad, pending before
learned court of Additional Chief Judicial Magistrate, Court No.4,
Ghaziabad.

3. Learned counsel appearing on behalf of applicants 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
     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
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                                   2

     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.

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.
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                                                                    3


                                    Sections 420 and 406 IPC cannot go in the same breath and as such,
                                    cognizance/summoning order dated 28.05.2024 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 28.05.2024 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.in the

                                    7. In view thereof, cognizance/summoning order dated 28.05.2024 passed
                                    in Case No.1479 of 2024 (State Vs. Sonakshi and others), arising out of Case
                                    Crime no.216 of 2018, under Sections 406, 420 IPC, P.S. Masoori, District
                                    Ghaziabad, pending before learned court of Additional Chief Judicial
                                    Magistrate, Court No.4, Ghaziabad, 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