HIGH COURT OF JUDICATURE AT ALLAHABAD APPLICATION U/S 528 BNSS No. - 37887 of 2025 Court No. - 81 HON'BLE MADAN PAL SINGH, J. 1. This matter has been taken up out of turn on the mention made by Mr. Chandrasen Patel, learned counsel for opposite party no.2. He states that he has tried to serve a notice to the learned counsel for the applicant that this matter may be taken up out of turn today, but the learned counsel for the applicants has refused to accept the same. A copy of the said notice has been placed before this Court which is taken on record. 2. Heard Mr. Chandrasen Patel, learned counsel for the opposite party no.2 and the learned A.G.A. for the State. 3. The present application under Section 528 B.N.S.S. has been filed for quashing the charge-sheet dated 11th June, 2025, cognizance/summoning order dated 15th July, 2025 as well as the entire Criminal Case No. 12081 of 2025 (State Vs. Nishant Kumar & Others) arising out of Case Crime No. 55 of 2025 under Sections 3 (5), 61 (2), 316 (5), 316 (5) and 318 (4) B.N.S., Police Station-Sector 126 Noida, District-Gautum Budh Nagar, pending in the Court of Additional Chief Judicial Magistrate-II, Gautam Budh Nagar. 4. By means of the present criminal application, it is the case of the applicants submits that the applicants have been summoned under Sections under Sections 3 (5), 61 (2), 316 (5), 316 (5) and 318 (4) B.N.S. vide order dated 15th July, 2025. It is further submitted that both Sections 316 (2) and 318 (4) B.N.S. along with other charging sections cannot go together in the same breath, in view of the law laid down by the Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of Uttar Pradesh and Another, reported in (2024) 10 SCC 690. It is thus contended that the impugned proceedings are liable to be set aside. 5. Per contra, learned counsel for opposite party no.2 as well as learned A.G.A. could not dispute the settled proposition of law relied upon by the Versus Counsel for Applicant(s) : Pradeep Kumar Counsel for Opposite Party(s) : Chandrasen Patel, G.A., Mohammad Khalid, Neha Faridi Nishant Kumar And 3 Others .....Applicant(s) State of U.P. and Another .....Opposite Party(s) learned counsel for the applicants. Learned counsel for opposite party no.2 also submits that in case the cognizance/summoning order dated 15th July, 2025 is set aside and the trial court is directed to pass fresh order taking cognizance or summoning the accused-applicants he has no objection. 6. The controversy involved in the present case relates to the co-existence of offences under Sections 406 and 420 I.P.C. on the same set of allegations. The Hon’ble Supreme Court in Delhi Race Club (1940) Ltd. vs. State of Uttar Pradesh and Another (supra) has clarified the legal position. The relevant portion of the judgment is 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 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. 42. The ingredients of the offence of cheating and criminal breach of trust are distinct and separate, and the same set of facts ordinarily cannot constitute both the offences simultaneously. 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 misappropriates 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.” 7. After hearing learned counsel for the parties, perusing the record and considering the law laid down by the Hon’ble Supreme Court, this Court finds that offences under Sections 316 (2) and 318 (4) B.N.S. cannot ordinarily be invoked together on the same set of facts. Therefore, the impugned summoning order dated 15th July, 2025 is not sustainable in law. 8. In view of the aforesaid, cognizance/summoning order dated 15th July, 2025 passed by the Additional Chief Judicial Magistrate-II, Gautam Budh Nagar, in Criminal Case No. 12081 of 2025 (State Vs. Nishant Kumar & NA528 No. 37887 of 2025 2 Others) arising out of Case Crime No. 55 of 2025 under Sections 3 (5), 61 (2), 316 (5), 316 (5) and 318 (4) B.N.S., Police Station-Sector 126 Noida, District- Gautum Budh Nagar is hereby set aside. 9. The matter is remitted back to the court concerned to pass a fresh order on the question of summoning, if required, in light of the law laid down by the Hon’ble Supreme Court in Delhi Race Club (supra) within a period of two months from today without granting any unnecessary adjournment to either of the parties. 10. Accordingly, the present application stands partly allowed. September 21, 2026 Sushil/- NA528 No. 37887 of 2025 3 (Madan Pal Singh,J.) Digitally signed by :- SUSHIL KUMAR SINGH High Court of Judicature at Allahabad