Neutral Citation No. - 2025:AHC-LKO:48169 Court No. - 14 Case :- APPLICATION U/S 482 No. - 6457 of 2025 Applicant :- Shashank Gupta And 3 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. Govt. Of U.P. Lko. And Another Counsel for Applicant :- Satendra Kumar (Singh),Abhishek Misra,Shivam Counsel for Opposite Party :- G.A. Hon'ble Shree Prakash Singh,J. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material placed on record. The instant application under section 482 Cr.P.C./528 of the B.N.S.S., 2023, has been filed with the prayer to quash the chargesheet no. 1 dated 03-03-2023, cognizance order dated 22-03- 2023 and the entire proceedings of Case No. 27685 of 2023(State Vs Shashank Gupta and Others), U/s 406/420 of the I.P.C., pending in the court of learned Chief Judicial Magistrate, Lucknow arising out of FIR No. 709 of 2023, Police Station- P.G.I., Lucknow. It is contended by the learned counsel for the applicants that one of the company namely, Tulsiyani Construction is the main culprit as the allegation with respect to deposit of amount by the informant/opposite party no. 2 is against the Tulsiyani Construction and not against the present applicants' company. He submits that infact the applicants and their company has been misled by Tulsiyani Construction as a contract was executed for the land which was under dispute as the ownership was not clear. He submits that the informant/opposite party no. 2 had deposited the amount for a different project and therefore, the allegation that the applicants and their company have committed some breach of trust, is unsustainable. He also submitted that the present applicants cannot be prosecuted for the offences under sections 406 & 420 of the I.P.C. simultaneously. In support of his contentions, he has placed reliance on the Judgment rendered 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) 8 S.C.R. 670 and has referred paragraph no. 30 of the aforesaid Judgment, which is quoted hereinunder :- "30. 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. Whereas, for the criminal breach of trust, the property must have been entrusted to the accused or he must have dominion over it. The property in respect of which the offence of breach of trust has been committed must be either the property of some person other than the accused or the beneficial interest in or ownership’ of it must be of some other person. The accused must hold that property on trust of such other person. Although the offence, i.e. the offence of breach of trust and cheating involve dishonest intention, yet they are mutually exclusive and different in basic concept. 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." Referring the aforesaid, he submits that the case of the present applicants is squarely covered with the ratio of Judgment abovesaid. After raising the abovenoted contention, he confined with the prayer that the applicants may be given liberty to move a discharge application before the learned trial court, not only the grounds of discharge but at the same time, the settled proposition of law, which was not considered and the learned trial court may be directed to decide the same within a stipulated period of time, as may be fixed by this court. Learned counsel for the State though has opposed the matter on merits, but, he has no objection if liberty is granted to the applicants to move a discharge application before the learned trial court. Considering the submissions of learned counsel for the parties and after perusal of the record, the applicants are given liberty to move a discharge application, raising the abovesaid legal question, before the learned trial court within a period of two weeks from today, and if such an application is moved, the learned trial court is directed to consider and decide the same, in the light of the law laid down in the case of Delhi Race Club(1940) Ltd.(Supra) within further period of 45 days. With the aforesaid observations, the instant application is disposed of accordingly. Order Date :- 18.8.2025 AKS Digitally signed by :- ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench Digitally signed by :- ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench