Neutral Citation No. - 2025:AHC:109874 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 19328 of 2025 Applicant :- Deena Nath Prajapati And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pramod Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for the applicants and learned A.G.A. for the State. 2. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed with the prayer to quash the entire criminal proceedings, including charge-sheet dated 03.12.2023 & supplementary charge-sheet dated 24.05.2024, as well as summoning orders dated 04.12.2023 & 30.01.2025, of Case No. 874 of 2023, arising out of Case Crime No. 0129 of 2023, under Sections 420, 406, 120-B IPC, P.S.- AIIMS, District- Gorakhpur, pending in the court of Chief Judicial Magistrate, Gorakhpur. 3. It has been submitted by learned counsel for the applicants that the first information report has been lodged making false allegationS. It is further submitted that by impugned order dated 04.12.2023, the applicant No. 2 Archana Sagar has been summoned for offence under Sections 420, 406, 120-B I.P.C. Similarly by order dated 30.01.2025, applicant No. 1 Deena Nath Prajapati has been summoned for the offence under Sections 420, 406, 120-B IPC. As per law laid down in case of Delhi Race Club (1940) Ltd. and Others Vs. State of Uttar Pradesh and Another 2024 SCC Online SC 2248, the offence of cheating viz-a-viz criminal breach of trust are independent and distinct and both cannot exist simultaneously and on this account alone the impugned summoning order is liable to be set aside. 4. Perusal of record shows that by impugned order dated 04.12.2023 the applicant No. 2 Archana Sagar has been summoned for the offence under Sections 420, 406, 120-B I.P.C. and in the similar way by impugned order dated 30.01.2025, applicant No. 1 Deena Nath Prajapati has been summoned for the offence under Sections 420, 406, 120-B IPC. In case of Delhi Race Club (supra), it has been held by the Hon'ble Apex Court that the offence of cheating viz-a-viz criminal breach of trust are independent and distinct and that the same cannot exist simultaneously in same set of facts and that they are antithetical to each other. Thus, it is clear that impugned summoning orders are not in accordance with law. 5. In view of the aforesaid, the impugned order dated 04.12.2023 qua applicant No. 2 Archana Sagar and impugned order dated 30.01.2025 qua applicant No. 1 Deena Nath Prajapati, passed by the Chief Judicial Magistrate, Gorakhpur are hereby set aside and the matter is remitted back to the court concerned to pass the order on the point of summoning afresh, expeditiously in accordance with law. 6. The application u/s 528 BNSS is finally disposed of in above terms. Order Date :- 9.7.2025 Rama Kant Digitally signed by :- RAMA KANT High Court of Judicature at Allahabad