Neutral Citation No. - 2025:AHC-LKO:20145 Court No. - 14 Case :- APPLICATION U/S 482 No. - 5235 of 2024 Applicant :- Smt. Seema Saxena And Another Opposite Party :- The State Of U.P. Thru. Its Prin. Secy. Deptt. Of Home Affairs Civil Sectt. Lko. And Another Counsel for Applicant :- Mohd.Yasin,Shipra Singh Counsel for Opposite Party :- G.A.,Gitanjali Nayak,Salil Tripathi Hon'ble Manish Kumar,J. 1. Heard learned counsel for the parties. 2. Present application has been filed under Section 482 Cr.P.C./528 B.N.S.S. with following main prayers:- "Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash the impugned Charge Sheet No.01 of 2023 dated 19.09.2023 arising out of the Case Crime/FIR No.0064 of 2023; under Sections 420, 447 & 406 of the I.P.C. at Police Station- Thakurganj, District- Lucknow as well as impugned cognizance order dated 01.01.2024 thereby summoning under Sections 406, 420 and 447 of the I.P.C. at Police Station- Thakurganj, District- Lucknow by the learned Special Additional Chief Judicial Magistrate (C.B.I.), Α.Ρ., Lucknow and/or further be pleased to stay the entire proceedings of the aforesaid criminal case titled as 'State Versus Seema Saxena and Another' pending before the learned Special Additional Chief Judicial Magistrate(C.B.I.), A.P., Lucknow to secure the ends of justice." 3. Learned counsel for the applicant has submitted that an FIR dated 28.1.2023 has been lodged by the respondent no. 2 against the applicants under Sections 420, 467, 468, 471, 447, 511 IPC. The police after investigation has filed the charge sheet under Sections 420, 447 and 406 IPC by added Section 406 IPC and dropping the offence under Sections 467, 468, 471 and 511 IPC under which the FIR was lodged. It is further submitted that the court concerned has taken cognizance and issued summoning order without application of mind as 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 (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 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, learned counsel for the respondent no. 2 and learned A.G.A. have vehemently opposed the application but unable to dispute the settled proposition of law as relied upon by the learned counsel for the applicant. 5. After hearing the learned counsel for the parties, going through the record of the case and the judgement of the Hon'ble Supreme Court rendered in the case of Delhi Race Club (Supra), the position which emerges out in the present case is that the court concerned while taking cognizance and issued the summoning order under both the sections i.e. sections 420 and 406 IPC, which cannot go in the same breath, is bad in the eyes of law and shows that the summoning order has been passed without application of mind as per the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (Supra), the cognizance and summoning order dated 1.1.2024 is hereby quashed. The court concerned is given liberty to pass a fresh order after application of mind at earliest. 6. With the aforesaid observations, the present application under Section 482 Cr.P.C./528 BNSS is allowed. Order Date :- 9.4.2025 AKK Digitally signed by :- AMIT KUMAR High Court of Judicature at Allahabad, Lucknow Bench