Neutral Citation No. - 2025:AHC:133528 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 24986 of 2025 Applicant :- Devendra Singh Rathod Alias Devendra Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sajiya Parveen Counsel for Opposite Party :- G.A. Hon'ble Avnish Saxena,J. 1. Ms. Sajiva Parveen, learned counsel for the applicant has moved the application under Section 528 B.N.S.S. to assail entire proceeding as well as cognizance order dated 22.05.2025 whereby the court concerned has taken cognizance of an offence in case no. 21021 of 2025 (State Vs. Devendra & others) arising out of case crime no. 489 of 2021, P.S. Tundla, District Firozabad against applicant simultaneously under Section 420 and 406 IPC. 2. The contention of learned counsel for the applicant is that two sections cannot be invoked simultaneously. 3. Learned AGA is present. 4. Learned counsel for the applicant, has relied upon the case of Delhi Race Club (1940) Ltd. and others Vs. State of U.P. reported in 2024(10) SCC 690 on the point that two sections, viz. section 420 and 406 IPC cannot be invoked simultaneously in one incident. 5. The FIR has been registered by respondent no.2/informant stating therein that the informant and applicant is familiar with each other. The applicant on the false pretext of accident of his son and for his treatment, he has demanded a sum of Rs.1,75,000/- from the informant. Considering the urgency the informant has given Rs. 1,75,000/- to the wife of the applicant. Learned counsel for the applicant further submits that when informant went to Mathura to see his son, she came to know that neither the applicant's son met with an accident nor he was admitted in the hospital. The informant's husband died on 28.12.2019 due to Cancer. The informant asked the applicant to return the money, but he only gave false promise to return the amount. 6. So far as, the contention of learned counsel for the applicant with regard to taking of cognizance by the trial court is concerned, the matter is squarely covered in the cited judgement but for, quashing of entire proceeding as well as charge sheet, the contention raised by Ms. Parveen that there are latches in the investigation, can not be a ground to quash the charge sheet as the matter pertains to cheat the informant on false pretext. 7. In the case of Delhi Race Club (supra) the Supreme Court has held that there is distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making of false and misleading representations, that is since inception; in criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriated the same. In case of cheating the offender fraudulently or dishonestly induces a person by deceiving him to deliver the property. In such a situation, both the offences cannot coexist simultaneously. Both the offences are independent and distinct. They are antithetical to each other, the twin provisions cannot survive with each other. 8. Hence, both the sections 406 and 420 IPC in which the Court has taken cognizance by the impugned order does not stand the test. The bare perusal of impugned order of cognizance shows that the Court has taken cognizance in both the Sections. 9. At this juncture, Ms. Parveen, learned counsel has limited his prayer to quash the cognizance order, as the order does not reflect the application of mind, though stated that the order would be assailed in revision but he has filed an application under Section 528 B.N.S.S. with the prayer of quashing the entire proceeding as well as cognizance order dated 22.05.2025. 10. This Court is of the view that the point made by Sri Singh has got substance, therefore, the impugned cognizance order dated 22.05.2025 in case no. 21021 of 2025 (State Vs. Devendra & others) arising out of case crime no. 489 of 2021, P.S. Tundla, District Firozabad in which the learned Magistrate has taken the cognizance, simultaneously, under Sections 420 and 406 IPC is hereby quashed. 11. Learned Magistrate may take into consideration the case diary to pass a fresh order of cognizance. 12. In view of the above, the application is disposed of. Order Date :- 7.8.2025/MN/- (Avnish Saxena,J.) Digitally signed by :- MAHENDRA NATH High Court of Judicature at Allahabad