HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 5101 of 2025 Court No. - 80 HON'BLE CHAWAN PRAKASH, J. 1. Heard Sri Arun Kumar Gupta, Advocate holding brief of Sri Nilay Kumar Pandey, learned counsel for the applicant, Ms. Pallavi Rani, learned counsel for opposite party No.2 and the learned A.G.A. for the State. 2. The present application has been filed for quashing the summoning order dated 05.02.2024 passed in Complaint No.111607 of 2023 (Nand Kumar Tripathi Vs. Santosh Mishra) under Sections 406, 420, 504 & 506 I.P.C., Police Station Sarnath, District Varanasi. 3. It is submitted by learned counsel for the applicant that the applicant and opposite party No. 2 are relatives. During the Covid-19 pandemic in the year 2020, the applicant along with his friend, namely, Kailash Nath Tripathi, approached opposite party No. 2 and requested a sum of Rs. 2,00,000/-, stating that the family of Kailash Nath Tripathi had suffered due to Covid-19 and was facing an acute financial crisis. Considering the said request, opposite party No. 2 issued a cheque of Rs. 2,00,000/- in favour of Kailash Nath Tripathi. Subsequently, in October 2021, the applicant again, along with Kailash Nath Tripathi, approached opposite party No. 2 and requested further financial assistance of Rs. 1,00,000/- and opposite party No. 2 again given a cheque of Rs. 75,000/-. Thereafter, when opposite party No. 2 demanded repayment of the aforesaid amounts from the applicant and Kailash Nath Tripathi, they failed and refused to return the same. On 13.10.2023, opposite party No. 2 filed a complaint Versus Counsel for Applicant(s) : Nilay Kumar Pandey, Sandip Kumar Singh Counsel for Opposite Party(s) : G.A., Pallavi Rani Santosh Mishra .....Applicant(s) State of U.P. and Another .....Opposite Party(s) alleging that the applicant and Kailash Nath Tripathi had not repaid the total outstanding amount of Rs. 2,75,000/-. The complainant was examined under Section 200 Cr.P.C., and his witnesses were examined under Section 202 Cr.P.C. On the basis of the material available on record, the learned Magistrate summoned the applicant to face trial under Sections 406, 420, 504 & 506 I.P.C. 4. It is further submitted by the learned Counsel for the applicant that as per the facts of the complaint itself, this matter is of the business transaction and the complainant has himself stated that the applicant has not paid the balance amount, thus, no offence under Sections 406 and 420 I.P.C. is made out against the applicant. It is further submitted that the summons cannot be issued against the applicant under Sections 420 and 406 simultaneously as per the Judgement passed by the Apex Court in Delhi Race Club (1940) Ltd. v. The State of Uttar Pradesh and Another, (2024) 10 SCC 690. Therefore, the entire proceedings of the aforesaid compliant may be quashed. 5. Per contra, learned counsel for opposite party No.2 has submitted that the learned Magistrate has not committed any illegality in summoning the applicant to face trial under Sections 406, 420, 504 & 506 I.P.C. The matter is regarding the business transaction between the applicant and opposite party no.2, which is contrary to the judgment of Delhi Race Club (supra). Therefore, this application may be dismissed. 6. As per the fact of the case, opposite party no. 2 had filed a complaint against the applicant on 13.10.2023 by stating that unpaid amount of Rs.2,75,000/- has not been paid by the applicant and his friend. Opposite party no. 2 got himself examined under Section 200 Cr.P.C. and his witnesses under Section 202 Cr.P.C. The learned Magistrate, vide order dated 05.02.2024, has summoned the applicant to face trial under Sections 406, 420, 504 & 506 I.P.C. 7. Criminal breach of trust is defined in Section 405 I.P.C., which reads: "Section 405. Criminal breach of Trust.-Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property NA528 No. 5101 of 2025 2 in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust". 8. Section 420 I.P.C. reads as under: "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." 9. As per Section 405 I.P.C, if someone entrusted property to another and the person to whom such property was entrusted, dishonestly misappropriates or converts the same to his own use or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, then an offence of criminal breach of trust is made out. As per the fact of the instant case, no money was entrusted in favour of the applicant. The matter is related to business transaction and the same has been converted into a criminal case by clever drafting. 10. As per the judgment of Delhi Race Club (supra), no person can be summoned to face trial under Sections 406 and 420 I.P.C. simultaneously because the ingredients of both sections are different. Moreover, in the present case, it is not the case of opposite party no. 2 that certain money was entrusted to the applicant, which shows that the learned Trial Court has not taken into consideration the fact of the case and also, has not taken into consideration the definition of criminal breach of trust and cheating, which is defined under Sections 405 and 420 I.P.C. and the order has been passed against the facts of the case and the same is liable to be set-aside. 11. Accordingly, the application is allowed. 12. The order of summoning dated 05.02.2024 passed by the Judicial NA528 No. 5101 of 2025 3 Magistrate, Court No.2, Varansi in Complaint Case No. 111607 of 2023 (Nand Kumar Tripathi Vs. Santosh Mishra), under Sections 406, 420, 504 and 506 I.P.C., is set-aside. The matter is remanded back to the learned trial court to pass afresh order within a period of two months from the date of production of certified copy of this order without granting any unnecessary adjournment to either of the parties. March 19, 2026 Md Faisal NA528 No. 5101 of 2025 4 (Chawan Prakash,J.) Digitally signed by :- MOHD FAISAL High Court of Judicature at Allahabad