HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 482 No. - 39965 of 2024 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. Heard learned counsel for the parties. 2. Present application has been preferred with prayer to quash entire proceeding of Case no. 2740 of 2023 (State vs. Karan Kumar and another), charge sheet dated 24.09.2023 as charge sheet no. 60 of 2023 arising out of Case Crime no. 65 of 2023 under sections 420, 406, 506 IPC and section 138 NI Act, PS- Rehar, District Bijnor as well as cognizance/summoning order dated 10.11.2023. 3. Learned counsel appearing on behalf of applicants have challenged the chargesheet dated 24.09.2023 and cognizance and summoning order dated 10.11.2023 on several grounds firstly that present matter arises out of offence related to cheque dishonor and as such complaint under Section 138 N.I. Act has to be lodged at the behest of informant for the said offence but in the present case FIR has been registered in pursuance to complaint under Section 156(3) Cr.P.C preferred at the behest of informant. However, while taking cognizance of offence over the charge sheet dated 24.09.2023 submitted against applicants, vide order dated 10.11.2023, learned court concerned took cognizance against applicants only in pursuance to sections 406, 420, 506 IPC and in pursuance to Section 138 Negotiable Instruments Act, 1881, liberty has been extended to informant to prefer complaint but the cognizance order is still not sustainable on the second 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 Versus Counsel for Applicant(s) : Surendra Mohan Mishra Counsel for Opposite Party(s) : G.A. Karan Kumar And Another .....Applicant(s) State of U.P. and Another .....Opposite Party(s) (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 of cheating as defined and explained in Section 415IPC, punishable under Section 420IPC. 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 A482 No. 39965 of 2024 2 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, the 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 argument has been raised by learned counsel for applicants only on legal ground and as such process to issue notice to opposite party no. 2/informant 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. In sofar as section 506 I.P.C. is concerned, the same have been fastened against the applicants in connection with Sections 406 and 420 I.P.C and 138 N.I. Act, and as such, impugned cognizance and summoning order dated 10.11.2023 passed by learned Chief Judicial Magistrate, Court no. 1, Nagina (Bijnor) in Case no. 2740 of 2023 (State vs. Karan Kumar and another), is hereby quashed. 7. Accordingly, the instant application stands partly allowed. September 4, 2025 Shaswat A482 No. 39965 of 2024 3 (Saurabh Srivastava,J.) Digitally signed by :- SHASWAT SINGH High Court of Judicature at Allahabad