HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 17898 of 2026 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. This case has been taken up in the mentioned category. Heard learned counsel for the parties. 2. Present application has been preferred with the prayer to quash the cognizance/summoning order dated 21.08.2024 as well as entire proceedings of Criminal Case No.10796 of 2024 (State Vs. Shashi Kant Pandey @ Sonu and others), arising out of Case Crime no.232 of 2024, under Sections 406, 420 IPC, P.S. Ahraula, District- Azamgarh, pending in the court of learned Additional Chief Judicial Magistrate, Court No.13, Azamgarh. 3. Learned counsel appearing on behalf of applicant has challenged the impugned cognizance/summoning order and entire proceedings of the present case precisely on the ground that Sections 420 and 406 IPC cannot go together in the same breath as per the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (1940) Ltd. and others vs. State of Uttar Pradesh and another reported in 2024 10 SCC 690. The relevant portion of the said judgment is being reproduced hereinbelow:- "38. In our view, the plain reading of the complaint fails to spell out any of the aforesaid ingredients noted above. We may only say, with a view to clear a serious misconception of law in the mind of the police as well as the courts below, that if it is a case of the complainant that offence of criminal breach of trust as defined under Section 405 IPC, punishable under Section 406 Versus Counsel for Applicant(s) : Sudarshan Singh, Vivek Singh Counsel for Opposite Party(s) : G.A., Kamlendra Tripathi, Vinod Kumar Mishra Mandhata Pandey .....Applicant(s) State of U.P. and Another .....Opposite Party(s) IPC, is committed by the accused, then in the same breath it cannot be said that the accused has also committed the offence of cheating as defined and explained in Section 415 IPC, punishable under Section 420 IPC. 41. The distinction between mere breach of contract and the offence of criminal breach of trust and cheating is a fine one. In case of cheating, the intention of the accused at the time of inducement should be looked into which may be judged by a subsequent conduct, but for this, the subsequent conduct is not the sole test. Mere breach of contract cannot give rise to a criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from the beginning of the transaction i.e. the time when the offence is said to have been committed. Therefore, it is this intention, which is the gist of the offence. 43. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e. since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously. 55. 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 vis-vis 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 IPC (now BNS, 2023) are not twins that they cannot survive without each other." 4. On the other hand, learned A.G.A. and learned counsel for opposite party no.2 vehemently opposed the prayer sought through the instant application but unable to dispute the settled proposition of law as relied upon by the NA528 No. 17898 of 2026 2 learned counsel appearing for applicant. 5. After hearing the learned counsel for the parties, going through the record of the case and the judgment of the Hon'ble Supreme Court rendered in the case of Delhi Race Club (Supra), it is crystal clear that both the sections i.e. Sections 420 and 406 IPC cannot go in the same breath and as such, cognizance/summoning order dated 21.08.2024 is liable to be set aside. Although judgment of Hon'ble Supreme Court rendered in the case of Delhi Race Club (Supra) has been passed on 23.08.2024 and cognizance of offence in the present case, has been taken on dated 21.08.2024 and as per the judgment rendered by Hon'ble the Apex Court in the case of Kanishk Sinha and another Vs. The State of West Bengal and another [2025 SCC Online SC 443], the judgment of Hon'ble the Apex Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. 6. In view thereof, cognizance/summoning order dated 21.08.2024 passed in Criminal Case No.10796 of 2024 (State Vs. Shashi Kant Pandey @ Sonu and others), arising out of Case Crime no.232 of 2024, under Sections 406, 420 IPC, P.S. Ahraula, District- Azamgarh, pending in the court of learned Additional Chief Judicial Magistrate, Court No.13, Azamgarh, is quashed. Matter is hereby remitted back to learned court concerned for passing fresh order of taking cognizance of offence, if required, in light of the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (supra). 7. Accordingly, the instant application stands allowed in part. May 7, 2026 Saif NA528 No. 17898 of 2026 3 (Saurabh Srivastava,J.) Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad