HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 11418 of 2026 Court No. - 77 HON'BLE SAURABH SRIVASTAVA, J. Ref: Criminal Misc. Amendment Application No.1 of 2026 1. This is an application seeking amendment in the prayer clause. 2. Learned counsel for the applicants seeks permission to amend the prayer clause of the instant application, since due to inadvertent mistake, cognizance order dated 06.06.2025 has been left out after chargesheet dated 01.03.2025. 3. Cause shown is sufficient and as such amendment application is hereby allowed. 4. The prayer made by learned counsel for the applicant is allowed. 5. Let necessary incorporation be carried out by learned counsel for the applicant in prayer clause of this application during the course of day. Order on 582 BNSS Application. 1. Heard learned counsel for applicant and learned AGA for the State. 2. Present application has been preferred with the prayer to quash the chargesheet dated 01.03.2025 and cognizance/summoning Versus Counsel for Applicant(s) : Shadab Ali Counsel for Opposite Party(s) : G.A. Mohd Asif .....Applicant(s) State of U.P. and Another .....Opposite Party(s) order dated 06.06.2025 along with entire proceedings of Case No.9156/9/2025 (Computerized No.38771 of 2025) (State Vs. Mohd. Asif and others) arising out of Case Crime no.0165 of 2024, Police Station Civil Lines, District Moradabad, pending before Chief Judicial Magistrate, District Moradabad. 3. Learned counsel appearing on behalf of applicant has challenged the impugned chargesheet along with cognizance/summoning order 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 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 NA528 No. 11418 of 2026 2 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. Since the arguments as advanced on behalf of learned counsel for applicant, are based on legal issue, no notice is required to be issued to opposite party no.2. 5. On the other hand, learned A.G.A. have 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. 6. After hearing the learned counsel for the parties, going through the record of the case and the judgment of the Hon'ble Supreme NA528 No. 11418 of 2026 3 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 06.06.2025 passed in Case No.9156/9/2025 (Computerized No.38771 of 2025) (State Vs. Mohd. Asif and others) arising out of Case Crime no.0165 of 2024, Police Station Civil Lines, District Moradabad, pending before Chief Judicial Magistrate, District Moradabad, 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 6, 2026 Ashish/- NA528 No. 11418 of 2026 4 (Saurabh Srivastava,J.) Digitally signed by :- ASHISH KUMAR SINGH High Court of Judicature at Allahabad