Neutral Citation No. - 2025:AHC:129011 . Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 23187 of 2025 Applicant :- Bhupendra Singh Alias Bhura And 11 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ayush Mishra,Prabha Shanker Mishra Counsel for Opposite Party :- Bhanu Prakash Verma,G.A. Hon'ble Raj Beer Singh,J. 1. Heard learned counsel for applicants, learned counsel for the informant / opposite party No. 2 and learned A.G.A. for the State. 2. This application under Section 528 Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as 'BNSS') has been filed for quashing of the entire proceedings, including charge-sheet dated 29.11.2024 as well as cognizance / summoning order dated 01.04.2025, of Case No. 41746 of 2025, arising out of Case Crime No.489 of 2024, under Sections 406, 420, 120-B IPC, P.S.- Govardhan, District- Mathura, pending in the court of C.J.M., Mathura. 3. It has been submitted by learned counsel for the applicants that dispute between the parties is relating to enforcement of agreement, which is purely civil in nature and no criminal offence is made out. Regarding the dispute between the parties, the opposite party No. 2 / informant has already filed a civil suit before the court of Civil Judge-I (S.D.), Mathura, which is pending. Learned counsel has referred the contents of first information report and material on record and submitted that no prima facie case is made out against the applicants. It is further submitted that 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. Learned AGA and learned counsel for the informant / opposite party No. 2 have vehemently opposed the application and 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 applicants. It was submitted that the informant has been cheated in the tune of about Rs. 6 crores and that a prima facie case is made out. Learned counsel has referred the case of Priti Saraf & Ors. v. State of NCT of Delhi & Ors., 2021(3)ACR2890 and submitted that in the facts and circumstances of the present case, civil as well as criminal proceedings may go on and that the impugned proceedings cannot be quashed merely on the ground that Sections 406, 420 IPC have been applied. 5. I have considered the rival submissions and perused the record. 6. In case of Priti Saraf & Ors. (supra) Hon'ble Apex Court has held as under:- "32. In the instant case, on a careful reading of the complaint/FIR/charge-sheet, in our view, it cannot be said that the complaint does not disclose the commission of an offence. The ingredients of the offences under Sections 406 and 420 IPC cannot be said to be absent on the basis of the allegations in the complaint/FIR/charge-sheet. We would like to add that whether the allegations in the complaint are otherwise correct or not, has to be decided on the basis of the evidence to be led during the course of trial. Simply because there is a remedy provided for breach of contract or arbitral proceedings initiated at the instance of the appellants, that does not by itself clothe the court to come to a conclusion that civil remedy is the only remedy, and the initiation of criminal proceedings, in any manner, will be an abuse of the process of the court for exercising inherent powers of the High Court under Section 482 CrPC for quashing such proceedings. 33. We have perused the pleadings of the parties, the complaint/FIR/charge-sheet and orders of the Courts below and have taken into consideration the material on record. After hearing learned counsel for the parties, we are satisfied that the issue involved in the matter under consideration is not a case in which the criminal trial should have been short-circuited. The High Court was not justified in quashing the criminal proceedings in exercise of its inherent jurisdiction. The High Court has primarily adverted on two circumstances, (i) that it was a case of termination of agreement to sell on account of an alleged breach of the contract and (ii) the fact that the arbitral proceedings have been initiated at the instance of the appellants. Both the alleged circumstances noticed by the High Court, in our view, are unsustainable in law. The facts narrated in the present complaint/FIR/charge-sheet indeed reveal the commercial transaction but that is hardly a reason for holding that the offence of cheating would elude from such transaction. In fact, many a times, offence of cheating is committed in the course of commercial transactions and the illustrations have been set out under Sections 415, 418 and 420 IPC. Similar observations have been made by this Court in Trisuns Chemical Industry Vs. Rajesh Agarwal and Ors.(supra) :- "9. We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases as indicated in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335]" 34. So far as initiation of arbitral proceedings is concerned, there is no correlation with the criminal proceedings. That apart, the High Court has not even looked into the charge-sheet filed against 2nd respondent which was on record to reach at the conclusion that any criminal offence as stated is prima facie being made out and veracity of it indeed be examined in the course of criminal trial." 7. It may be stated that in a recent decision of Hon'ble Apex Court in the case of Delhi Race Club (1940) Ltd. and Others (supra), it has been held as under:- "42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police – to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind. 43. 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 viz-a-viz 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 the IPC (now BNS, 2023) are not twins that they cannot survive without each other." 8. Thus, in view of subsequent decision of Hon'ble Apex court in case of Delhi Race Club (supra), it has clearly been held that the offence of cheating viz-a-viz criminal breach of trust are independent and distinct and thus, the same cannot exist simultaneously in same set of facts and that they are antithetical to each other. In view of attending facts and circumstances of the case, the law laid down in the case of Delhi Race Club (1940) Ltd. and Others (supra), is applicable to the present case and thus, the impugned summoning order is not in accordance with law. 9. In view of the aforesaid, the impugned summoning order dated 01.04.2025, passed by A.C.J.M., Court No. 1, Mathura, is 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. 10. The application under Section 528 BNSS is disposed of in above terms. Order Date :- 1.8.2025 Anand Digitally signed by :- ANAND VERMA High Court of Judicature at Allahabad