Neutral Citation No. - 2025:AHC-LKO:48599 Court No. - 13 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7592 of 2025 Applicant :- Pramod Kumar Upadhyay Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Virendra Kumar Shukla Counsel for Opposite Party :- G.A.,Ajay Pratap Singh Hon'ble Subhash Vidyarthi,J. 1. Heard Shri Virendra Kumar Shukla, learned counsel for the applicant, Smt. Kamlesh Kumari, learned A.G.A. for the State, Shri Ajay Pratap Singh, the learned counsel who has filed his vakalatnama on behalf of the complainant, which is taken on record. 2. The instant application has been filed seeking release of the applicant on bail in Case Crime No.114 of 2025, under Sections 409, 420, 504, 506 I.P.C., registered at Police Station Mohanlalganj, District Lucknow. 3. The aforesaid case has been registered on the basis of an F.I.R. lodged on 12.04.2025 against the applicant and his brother Vinod Kumar Upadhyay, stating that the informant's wife had purchased plot of land from H.K. Infra Vision Pvt. Ltd. for sale consideration of Rs.12,37,500/- in the year 2019, but possession of land was not delivered to her. 4. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the present case. The applicant's involvement in 21 other cases has been disclosed in para 16 of the affidavit, which are similar in nature and the applicant has been granted bail in one of the cases. 5. A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the sale deed executed in favour of the informant's wife and it is mentioned in the sale deed that possession of the land in question had been delivered to the purchaser at the time of execution thereof. 6. The learned A.G.A. has opposed the bail applicant and she has stated that the applicant is involved in 47 criminal cases, all of which are similar in nature. 7. The learned counsel for the complainant has vehemently opposed the bail application and he has submitted that the applicant has duped numerous persons. 8. The applicant has already been granted bail in another case of similar nature by means of an order dated 07.08.2025 passed by this Court in Bail Application No.7263 of 2025, after hearing submissions of the complainant. 9. The F.I.R. includes allegation of commission of offences under Sections 409 and 420 I.P.C., which are as follows: -"409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. * * * 420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." 10. There is no allegation that the accused persons had been entrusted with any property, or with any dominion over property in their capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and apparently, Section 409 I.P.C. is not attracted in the present case. It appears that Section 409 IPC has been mentioned in the F.I.R. only to portray the offences as more grave and serious, as it carries the punishment of imprisonment upto life whereas the offence punishable under Section 420 carries a maximum sentence of imprisonment which may extend upto seven years only. 11. As the allegations make in the F.I.R. do not make out commission of the offence under Section 409 I.P.C. and the same only make out a case of commission of the offence punishable under Section 420 I.P.C., the accused persons ought not to have been arrested in the present case. 12. In Delhi Race Club (1940) Ltd. v. State of U.P.: (2024) 10 SCC 690, the Hon'ble Supreme Court has held that: - "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." 13. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the sale deed in question was registered on 23.04.2019; that it is recorded in the sale deed that possession of land was delivered to the purchaser - complainant; that the F.I.R. has been lodged more than 7 years thereafter requesting the police to help in delivery of possession of the plot in question to the informant, which prayer essentially is in the nature of a decree for recovery of possession of an immovable property which relief can only be granted in a civil suit, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime. 14. Accordingly, this bail application stands allowed. 15. Let the applicant- Pramod Kumar Upadhyay be released on bail in the aforementioned case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial Court. . [Subhash Vidyarthi, J.] Order Date :- 19.8.2025 Ankit Digitally signed by :- ANKIT SHARMA High Court of Judicature at Allahabad, Lucknow Bench