SUBHASH YADAVversusSTATE OF U.P. AND ANOTHER

              HIGH COURT OF JUDICATURE AT ALLAHABAD

               APPLICATION U/S 528 BNSS No. - 5035 of 2026

Subhash Yadav
                                                                .....Applicant(s)
                                       Versus
State of U.P. and Another
                                                                   .....Opposite
                                                                         Party(s)

Counsel for Applicant(s)           :    Alfiya Bano, Lubna Sayida, Sufia Saba
Counsel for Opposite Party(s)      :    G.A.

Court No. - 81
                          HON'BLE MADAN PAL SINGH, J.

1. Heard learned counsel for the applicant, and the learned A.G.A. for the
State. Despite the fact that notice has been served upon opposite party no.2
personally, nobody is present on behalf of opposite party no.2 today even in
the revised reading of the list.

2. The present application under Section 482 Cr.P.C. has been filed for
quashing the charge-sheet dated 14th August, 2024, cognizance/summoning
order dated 14th May, 2025 as well as the entire Criminal Case No. 451 of
2025 (State Vs. Subhash Yadav) arising out of Case Crime No. 69 of 2024,
under Sections 419, 420 and 406 I.P.C. Police Station-Tezi Bazar, District-
Jaunpur, pending in the Court of Judicial Magistrate-I, Court No.17, Jaunpur.

Learned counsel for the appellant submits that the applicant has been
summoned under Sections under Sections 419, 420 and 406 I.P.C. vide order
dated 14th May, 2025. It is further submitted that both Sections 406 and 420
I.P.C. along with other charging section cannot go together in the same
breath, in view of the law laid down by the Hon’ble Supreme Court in Delhi
Race Club (1940) Ltd. vs. State of Uttar Pradesh and Another, reported in
(2024) 10 SCC 690. It is thus contended that the impugned proceedings are
liable to be set aside.

4. Per contra, learned counsel for opposite party no.2 as well as learned
A.G.A. have opposed the prayer made in the application; however, they could
not dispute the settled proposition of law relied upon by the learned counsel
for the applicants.

5. The controversy involved in the present case relates to the co-existence of
offences under Sections 406 and 420 I.P.C. on the same set of allegations.
The Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of
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                                  2

Uttar Pradesh and Another (supra) has clarified the legal position. The
relevant portion of the judgment is 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 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 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.

42. The ingredients of the offence of cheating and criminal breach of trust are
distinct and separate, and the same set of facts ordinarily cannot constitute
both the offences simultaneously.

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
misappropriates 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.”

6. After hearing learned counsel for the parties, perusing the record and
considering the law laid down by the Hon’ble Supreme Court, this Court finds
that offences under Sections 406 and 420 I.P.C. cannot ordinarily be invoked
together on the same set of facts. Therefore, the impugned summoning order
dated 14th May, 2025 is not sustainable in law.

7. In view of the aforesaid, cognizance/summoning order dated 14th May,
2025 passed by the Judicial Magistrate-I, Court No.17, Jaunpur in Criminal
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                                    Case No. 451 of 2025 (State Vs. Subhash Yadav) arising out of Case Crime
                                    No. 69 of 2024, under Sections 419, 420 and 406 I.P.C. Police Station-Tezi
                                    Bazar, District-Jaunpuris hereby set aside.

                                    8. The matter is remitted back to the court concerned to pass a fresh order on
                                    the question of summoning, if required, in light of the law laid down by the
                                    Hon’ble Supreme Court in Delhi Race Club (supra) within a period of two
                                    months from today.

                                    9. Accordingly, the present application stands partly allowed.

                                    September 30, 2026
                                    Sushil/-
                                                                                             (Madan Pal Singh,J.)




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