Neutral Citation No. - 2025:AHC:133674 Court No. - 71 Case :- APPLICATION U/S 528 BNSS No. - 25027 of 2025 Applicant :- Aditya Sahu Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ankit Kumar Singh,Dev Raj Singh Counsel for Opposite Party :- G.A. Hon'ble Avnish Saxena,J. 1. Sri Devraj Singh, learned counsel for the applicant has moved the application under Section 528 B.N.S.S. to assail entire proceeding as well as summoning order dated 2nd June, 2025 whereby the court concerned has taken cognizance of an offence in case crime no. 85 of 2023, P.S. Gajner, District Kanpur Dehat 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 has prayed for time to file counter affidavit after seeking directions. 4. Sri Devraj Singh, 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 after the death of the father of the informant the amount of Rs. 10 Lakhs was transferred to the account of his mother. The informant's mother is getting family pension after the demise of informant's father.The informant and his mother are his nephew has added his mobile number in that account but withdraw all the money of his mother through A.T.M. and U.P.I I.D. On coming to know the fact, the informant asked the applicant to return the money, he 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 Sri Singh that there are latches in the investigation, can not be a ground to quash the charge sheet as the matter pertains to withdrawal of money from the bank account of informant's mother. 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, Sri Singh, 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 summoning order dated 02.06.2025. 10. This Court is of the view that the point made by Sri Singh has got substance, therefore, the impugned cognizance order dated 2nd June, 2025 in case crime no. 85 of 2023, P.S. Gajner, District Kanpur Dehat 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 allowed. Order Date :- 7.8.2025 Abhishek Sri. (Avnish Saxena,J.) Digitally signed by :- ABHISHEK RANJAN SRIVASTAVA High Court of Judicature at Allahabad