Neutral Citation No. - 2025:AHC:128755 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 23118 of 2025 Applicant :- Yogendra Nath Pandey Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kamlesh Kumar Tiwari Counsel for Opposite Party :- Anil Kumar Singh Bishen,G.A. Hon'ble Raj Beer Singh,J. 1. Short counter affidavit filed by learned counsel for the opposite party no.2, in Court today, is taken on record. 2. Heard learned counsel for the applicant, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record. 3. This application u/s 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed for quashing of the entire proceedings, including charge-sheet dated 31.03.2025 as well as cognizance / summoning order dated 20.05.2025, of Criminal Case No. 5367 of 2025 (State of U.P. Vs. Yogendra Nath Pandey), arising out of Case Crime No. 900 of 2024, under Sections - 420, 406, 419, 506 I.P.C., Police Station - Chiluatal, District - Gorakhpur, pending in the court of Additional Chief Judicial Magistrate / Senior Division-2, Gorakhpur. 4. It is submitted by learned counsel for the applicant that first information report of this case has been lodged making false allegations. It is further submitted that by impugned order applicant has been summoned for offence under Sections - 420, 406, 419, 506 I.P.C. and 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. 5. Perusal of record shows that by impugned order dated 20.05.2025 applicant has been summoned under Sections - 420, 406 I.P.C. besides Sections - 419, 506 I.P.C.. As stated above, 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 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 order is not in accordance with law. 6. In view of aforesaid, the impugned summoning order dated 20.05.2025, passed by the Additional Chief Judicial Magistrate / Senior Division-2, Gorakhpur, qua the applicant, is hereby set aside and the matter is remitted back to the court concerned to pass an order on the point of summoning afresh, expeditiously in accordance with law. 7. The application u/s 528 BNSS is disposed of in above terms. Order Date :- 1.8.2025 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad