SANTOSH MISHRAversusSTATE OF U.P. AND ANOTHER

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                 APPLICATION U/S 528 BNSS No. - 5101 of 2025

Santosh Mishra
                                                          .....Applicant(s)
                                   Versus

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

Counsel for Applicant(s)      : Nilay Kumar Pandey, Sandip Kumar
                                Singh
Counsel for Opposite Party(s) : G.A., Pallavi Rani

Court No. - 80
                    HON'BLE CHAWAN PRAKASH, J.

1. Heard Sri Arun Kumar Gupta, Advocate holding brief of Sri Nilay
Kumar Pandey, learned counsel for the applicant, Ms. Pallavi Rani,
learned counsel for opposite party No.2 and the learned A.G.A. for the
State.

2. The present application has been filed for quashing the summoning
order dated 05.02.2024 passed in Complaint No.111607 of 2023 (Nand
Kumar Tripathi Vs. Santosh Mishra) under Sections 406, 420, 504 & 506
I.P.C., Police Station Sarnath, District Varanasi.

3. It is submitted by learned counsel for the applicant that the applicant
and opposite party No. 2 are relatives. During the Covid-19 pandemic in
the year 2020, the applicant along with his friend, namely, Kailash Nath
Tripathi, approached opposite party No. 2 and requested a sum of Rs.
2,00,000/-, stating that the family of Kailash Nath Tripathi had suffered
due to Covid-19 and was facing an acute financial crisis. Considering the
said request, opposite party No. 2 issued a cheque of Rs. 2,00,000/- in
favour of Kailash Nath Tripathi. Subsequently, in October 2021, the
applicant again, along with Kailash Nath Tripathi, approached opposite
party No. 2 and requested further financial assistance of Rs. 1,00,000/-
and opposite party No. 2 again given a cheque of Rs. 75,000/-. Thereafter,
when opposite party No. 2 demanded repayment of the aforesaid amounts
from the applicant and Kailash Nath Tripathi, they failed and refused to
return the same. On 13.10.2023, opposite party No. 2 filed a complaint
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alleging that the applicant and Kailash Nath Tripathi had not repaid the
total outstanding amount of Rs. 2,75,000/-. The complainant was
examined under Section 200 Cr.P.C., and his witnesses were examined
under Section 202 Cr.P.C. On the basis of the material available on
record, the learned Magistrate summoned the applicant to face trial under
Sections 406, 420, 504 & 506 I.P.C.

4. It is further submitted by the learned Counsel for the applicant that as
per the facts of the complaint itself, this matter is of the business
transaction and the complainant has himself stated that the applicant has
not paid the balance amount, thus, no offence under Sections 406 and 420
I.P.C. is made out against the applicant. It is further submitted that the
summons cannot be issued against the applicant under Sections 420 and
406 simultaneously as per the Judgement passed by the Apex Court in
Delhi Race Club (1940) Ltd. v. The State of Uttar Pradesh and
Another, (2024) 10 SCC 690. Therefore, the entire proceedings of the
aforesaid compliant may be quashed.

5. Per contra, learned counsel for opposite party No.2 has submitted that
the learned Magistrate has not committed any illegality in summoning the
applicant to face trial under Sections 406, 420, 504 & 506 I.P.C. The
matter is regarding the business transaction between the applicant and
opposite party no.2, which is contrary to the judgment of Delhi Race
Club (supra). Therefore, this application may be dismissed.

6. As per the fact of the case, opposite party no. 2 had filed a complaint
against the applicant on 13.10.2023 by stating that unpaid amount of
Rs.2,75,000/- has not been paid by the applicant and his friend. Opposite
party no. 2 got himself examined under Section 200 Cr.P.C. and his
witnesses under Section 202 Cr.P.C. The learned Magistrate, vide order
dated 05.02.2024, has summoned the applicant to face trial under Sections
406, 420, 504 & 506 I.P.C.

7. Criminal breach of trust is defined in Section 405 I.P.C., which reads:

"Section 405. Criminal breach of Trust.-Whoever, being in any manner entrusted with
property, or with any dominion over property, dishonestly misappropriates or
converts to his own use that property, or dishonestly uses or disposes of that property
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in violation of any direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has made touching
the discharge of such trust, or wilfully suffers any other person so to do, commits
"criminal breach of trust".

8. Section 420 I.P.C. reads as under:

"420. Cheating and dishonestly inducing delivery of property.?Whoever cheats and
thereby dishonestly induces the person deceived to deliver any property to any person,
or to make, alter or destroy the whole or any part of a valuable security, or anything
which is signed or sealed, and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to fine."

9. As per Section 405 I.P.C, if someone entrusted property to another and
the person to whom such property was entrusted, dishonestly
misappropriates or converts the same to his own use or dishonestly uses
or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, then an
offence of criminal breach of trust is made out. As per the fact of the
instant case, no money was entrusted in favour of the applicant. The
matter is related to business transaction and the same has been converted
into a criminal case by clever drafting.

10. As per the judgment of Delhi Race Club (supra), no person can be
summoned to face trial under Sections 406 and 420 I.P.C. simultaneously
because the ingredients of both sections are different. Moreover, in the
present case, it is not the case of opposite party no. 2 that certain money
was entrusted to the applicant, which shows that the learned Trial Court
has not taken into consideration the fact of the case and also, has not
taken into consideration the definition of criminal breach of trust and
cheating, which is defined under Sections 405 and 420 I.P.C. and the
order has been passed against the facts of the case and the same is liable
to be set-aside.

11. Accordingly, the application is allowed.

12. The order of summoning dated 05.02.2024 passed by the Judicial
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                                    Magistrate, Court No.2, Varansi in Complaint Case No. 111607 of 2023
                                    (Nand Kumar Tripathi Vs. Santosh Mishra), under Sections 406, 420, 504
                                    and 506 I.P.C., is set-aside. The matter is remanded back to the learned
                                    trial court to pass afresh order within a period of two months from the
                                    date of production of certified copy of this order without granting any
                                    unnecessary adjournment to either of the parties.



                                                                                      (Chawan Prakash,J.)
                                    March 19, 2026
                                    Md Faisal




Digitally signed by :-
MOHD FAISAL
High Court of Judicature at Allahabad