HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 8123 of 2024 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. 2. The present application under Section 482 Cr.P.C. has been filed for quashing the charge-sheet dated 12th May, 2023, cognizance/summoning order dated 11th July, 2023 as well as the entire Criminal Case No. 48767 of 2023 (State Vs. Kundan & Others) under Sections 419, 420 and 406 I.P.C., Police Station-Gagaha, District-Gorakhpur, pending in the Court of Additional Civil Judge (Junior Division), Court No.4, Gorakhpur. 3. Learned counsel for the applicant submits that the applicant has been summoned under Sections under Sections 419, 420 and 406 I.P.C. vide order dated 11th July, 2023. It is further submitted that both Sections 406 and 420 I.P.C. 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 A.G.A. has opposed the prayer made in the appeal; however, he could not dispute the settled proposition of law relied upon by the learned counsel for the applicant. 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 Uttar Pradesh and Another (supra) has clarified the legal position. The relevant portion of the judgment is reproduced hereinbelow: Versus Counsel for Applicant(s) : Ajai Kumar Singh, Anchal Kumar Rao, Bhoopendra Pratap Singh, Shiv Chand Yadav Counsel for Opposite Party(s) : Ashwani Kumar Pathak, G.A. Mahendra .....Applicant(s) State of U.P. and Another .....Opposite Party(s) “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 11th July, 2023 is not sustainable in law. 7. In view of the aforesaid, cognizance/summoning order dated 11th July, 2023 passed by the Additional Civil Judge (Junior Division), Court No.4, Gorakhpur in Criminal Case No. 48767 of 2023 (State Vs. Kundan & Others) under Sections 419, 420 and 406 I.P.C., Police Station-Gagaha, District- A482 No. 8123 of 2024 2 Gorakhpur is 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). 9. Accordingly, the present application stands partly allowed. September 9, 2026 Sushil/- A482 No. 8123 of 2024 3 (Madan Pal Singh,J.) Digitally signed by :- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad