Neutral Citation No. - 2025:AHC:100913 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 14924 of 2025 Applicant :- Piyush Pushpak Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Gupta Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Supplementary affidavit filed in Court today, is taken on record. 2. Heard learned counsel for the applicant and learned A.G.A. for the State. 3. The present application under Section 528 of Bhartiya Nagarik Suraksha Sanhita (hereinafter referred as 'BNSS') has been filed for quashing of the entire proceedings, including charge-sheet dated 11.09.2020 and cognizance / summoning order dated 04.01.2022, of criminal case no. 1679 of 2020, arising out of case crime no. 1440 of 2018, under Sections 420, 406, 468, 120-B / 34 IPC, P.S. Noida Sector-49, District Gautambudh Nagar, pending in the court of A.C.J.(S.D.)-II/ACJM., Gautambudh Nagar. 4. It has been argued by learned counsel for the applicant that the dispute between the parties is purely civil in nature regarding booking of a flat made by the informant with M/s PSA Impex Pvt. Ltd. Applicant is not a director or office bearer of the said company or alleged Shubhkamna Buildtech Pvt. Ltd. No amount has been transferred or given to the applicant. The booking amount has been given by the informant to co-accused Piyush Tiwari and his company Shubhkamna Buildtech Pvt. Ltd. It was submitted that merely presence of applicant was shown at the time of execution of builder-buyer agreement. Referring to the facts of the matter, it was submitted that no prima facie case is made out against the applicant. 5. It is further submitted that applicant has been summoned for the offence under Sections 420, 406, 468, 120-B / 34 IPC and in view of the law laid down in the case of Delhi Race Club (1940) Ltd. & Ors. v. State of U.P. & Anr., 2024 0 Supreme(SC) 689, applicant cannot be prosecuted for both the offence under Sections 420 and 406 IPC simultaneously and on this ground also the impugned summoning order is liable to be quashed. 6. Learned A.G.A. has opposed the application and argued that there are allegations against the applicant that he has introduced the informant with co-accused persons and he has promised the informant to provide the flat at low price. It was further submitted that in view of the allegations made in the first information report and the material collected during investigation, a prima facie case is made out against the applicant. 7. I have considered the rival submissions and perused the record. 8. It is well settled that at the stage of issuing process under Section 204 Cr.P.C., the Magistrate is mainly concerned with the allegations made in the complaint and evidence led in support of the same. The Magistrate has to be satisfied that there are sufficient grounds for proceedings against the accused. 9. In the instant matter it appears from record that as per prosecution version, no amount was transferred or given to the applicant and he has been charge-sheeted with the aid of Section 120-B IPC. Applicant has been summoned for the offence under Sections 420, 406, 468, 120-B / 34 IPC vide impugned summoning order dated 04.01.2022 and in view of the law laid down in the case of Delhi Race Club (1940) Ltd. & Ors. (Supra), applicant cannot be prosecuted for both the offence under Sections 420 and 406 IPC simultaneously. It was held that offence under Sections 420 and 406 IPC are antithetical to each other and they cannot exist together. 10. In view of aforesaid, the impugned summoning order dated 04.01.2022 qua the applicant Piyush Pushpak is hereby set aside and matter is remanded back to learned Magistrate to pass an order on the point of summoning of applicant afresh, in accordance with law. 11. The application under Section 528 BNSS is disposed of in above terms. Order Date :- 1.7.2025 Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad