HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 32196 of 2025 Court No. - 83 HON'BLE SANJIV KUMAR, J. 1. Heard Sri Vivek Kumar Yadav, Advocate holding brief of Sri Dinesh Kumar Yada, learned Counsel for applicant and learned A.G.A. for the State. 2. The present application has been preferred with the prayer to quash the entire proceedings of Case No.7377 of 2024, arising out of Case Crime No.430 of 2023, under Sections 420, 406, 504 and 506 I.P.C., Police Station Kotwali, District Maharajganj as well as charge-sheet dated 22.11.2023 and summoning order dated 18.03.2024. 3. Learned Counsel for the applicant submits that the dispute is essentially civil in nature and has been given a criminal colour with an ulterior motive. He next submits that the applicant has challenged the impugned charge-sheet along with cognizance/summoning order and the entire proceedings of the present case precisely on the ground that Sections 420 and 406 IPC cannot go together on the same set of facts, in view of the proposition of law settled by the Hon'ble Supreme Court in Delhi Race Club (1940) Ltd. and Others v. State of Uttar Pradesh and Another, reported in (2024) 10 SCC 690. "38. In our view, the plain reading of the complaint Versus Counsel for Applicant(s) : Atmaram Nadiwal, Dinesh Kumar Yadav Counsel for Opposite Party(s) : G.A. Jaki Alias Jaki Ahmad Alias Jaki Ahmad Ansari .....Applicant(s) State of U.P. and Another .....Opposite Party(s) 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 415 IPC, punishable under Section 420 IPC. 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 NA528 No. 32196 of 2025 2 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 A.G.A. has vehemently opposed the prayer sought through the instant application but unable to dispute the settled proposition of law as relied upon by the learned counsel appearing for applicant. 5. After hearing the learned counsel for the parties, going through the record of the case and the judgment of the Hon'ble Supreme Court rendered in the case of Delhi Race Club (Supra), it is crystal clear that both the sections i.e. Sections 420 and 406 IPC cannot go in the same breath on same facts and as such, cognizance/summoning order dated 18.03.2024 passed by the Chief Judicial Magistrate, Maharajganj in Case No.7377 of 2024, arising out of Case Crime No.430 of 2023, under Sections 420, 406, 504 and 506 I.P.C., Police Station Kotwali, District Maharajganj, is quashed. Matter is hereby remitted back to the Chief Judicial Magistrate, Maharajganj for passing fresh order of taking cognizance of offence, if required, in light of the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (supra). 6. Accordingly, the instant application stands allowed in part. May 6, 2026 Amit NA528 No. 32196 of 2025 3 (Sanjiv Kumar,J.) Digitally signed by :- AMIT KUMAR High Court of Judicature at Allahabad