Neutral Citation No. - 2025:AHC-LKO:29131 Court No. - 14 Case :- APPLICATION U/S 482 No. - 1660 of 2023 Applicant :- Irfan Latif Shaikh Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home, Civil Sectt, Lko. And Another Counsel for Applicant :- Surendra Kumar Mishra,Ajay Kumar Chuabey Counsel for Opposite Party :- G.A.,Mohd. Muballi Gussalam Hon'ble Manish Kumar,J. 1. The present application under Section 482 Cr.P.C/528 B.N.S.S has been preferred with the following main prayer:- " The petitioner above named most respectfully begs to submit that for the facts, reasons and circumstances as stated in the accompanying affidavit, this Hon'ble Court may kindly be pleased to quash the summoning order dated 27.05.2022 as well as Non Bailable Warrant order dated 05.11.2022 passed by the Additional Chief Judicial Magistrate-III, Lucknow, in Case Crime No. 09/2022 "State Vs. Mohd. Irfan and others" and Chargesheet dated 12.03.2022, submitted by the police before the learned Additional Chief Judicial Magistrate-III, Lucknow, arising out of Case Crime No. 09/2022, under section 420, 406 I.P.C. at Police Station Sadatganj, District Lucknow, in the interest of justice. It is further prayed that the Hon'ble Court may kindly be pleased to stay the further proceeding of Case Crime No. 09/2022 "State Vs. Mohd. Irfan and others" pending in the court of the learned Additional Chief Judicial Magistrate-III, Lucknow. " 2. Learned counsel for the applicant has submitted that the charge sheet against the applicant has been filed under Sections 406 and 420 I.P.C and the concerned court has taken cognizance and issued summon against the applicant without application of mind. 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, Sections 406 and 420 I.P.C cannot go in the same breath. 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 I.P.C, punishable under Section 406 I.P.C, 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 I.P.C, punishable under Section 420 I.P.C. 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-a-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 I.P.C (now B.N.S, 2023) are not twins that they cannot survive without each other." 3. At this stage, learned counsel for respondent no. 2 has very fairly submitted that the impugned summoning order may be quashed and the matter may be remanded to the concerned court to take cognizance and issue fresh summoning orders after deciding under which sections, the cognizance is to be taken. 4. After hearing learned counsel for the parties and going through the records of the case, the position which emerges out is that the cognizance and the summoning order were against the applicant under Sections 406 and 420 I.P.C which cannot go together in the same breath as per the law settled in the above mentioned case. 5. Learned A.G.A. and learned counsel for respondent no. 2 has very fairly accepted this settled legal proposition of law as relied upon by the learned counsel for the applicant i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be proceeded with simultaneously. 6. In view of the facts, circumstances and discussion made hereinabove, the present application is allowed. 7. The impugned summoning and cognizance order dated 27.05.2022 are hereby quashed. 8. The matter is remanded to the court concerned to pass an appropriate order in accordance with law and the discussion made hereinabove. Order Date :- 16.5.2025 DiVYa Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench