HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 16137 of 2026 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. 1. Heard Sri Kameshwar Singh, learned counsel for applicant and learned A.G.A. for the State. 2. At the very outset, learned counsel for the applicant seeks permission to correct the prayer clause of instant application by way of challenging the order through which charges have been framed against the applicant and the same is hereby allowed. 3. Let necessary correction be carried out in the prayer clause of instant application by learned counsel for the applicant during the course of day. 4. Present application has been preferred with the prayer to quash the framing of charge order dated 14.12.2021 as well as order dated 17.09.2025 passed by learned Additional Chief Judicial Magistrate, Court No.2, Varanasi in Case No.468 of 2009 (State vs. Man Bahadur and Another) arising out of Case Crime No.534 of 2008, under Sections 419, 406, 420, 506, 120B IPC, P.S. Sigra, District- Varanasi, including the entire proceedings of above-mentioned case. 5. At the very outset, learned counsel appearing on behalf of applicant has challenged the impugned orders along with 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:- Versus Counsel for Applicant(s) : Kameshwar Singh, Sudhanshu Kumar Singh Counsel for Opposite Party(s) : G.A. Man Bahadur Singh .....Applicant(s) State of U.P. and Another .....Opposite Party(s) "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 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." 6. On the other hand, learned A.G.A. has vehemently opposed the prayer sought through the instant application, but unable to dispute the settled proposition of law as relied upon by the learned counsel appearing for applicant. 7. Since the legal issue has been raised by learned counsel for the applicant NA528 No. 16137 of 2026 2 and as such process to issue notice to opposite party no.2 is hereby dispensed with. 8. After hearing 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, impugned order dated 14.12.2021, through which charges have been framed against the applicant as well as other consequential orders such as order dated 17.09.2025 passed by learned Additional Chief Judicial Magistrate, Court No.2, Varanasi in Case No.468 of 2009 (State vs. Man Bahadur and Another) arising out of Case Crime No.534 of 2008, under Sections 419, 406, 420, 506, 120B IPC, P.S. Sigra, District- Varanasi, are hereby set-aside. Learned court concerned is hereby directed to further frame charges against the applicant, if required, in light of the proposition of law settled by Hon'ble Supreme Court in the case of Delhi Race Club (supra). 9. Accordingly, the instant application stands allowed in part. May 6, 2026 Saif NA528 No. 16137 of 2026 3 Digitally signed by :- SHAIKH SAIF ABDIN High Court of Judicature at Allahabad