Vivek Sharma And Another vs State Of Up Others
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Allahabad High Court

Vivek Sharma And Another vs State Of Up Others on 4 August, 2025

Author: Deepak Verma

Bench: Deepak Verma

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:130597
 
Court No. - 72
 
Case :- APPLICATION U/S 482 No. - 1587 of 2024
 
Applicant :- Vivek Sharma And Another
 
Opposite Party :- State Of Up Others
 
Counsel for Applicant :- Satish Chandra Dubey
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Deepak Verma,J.
 

1. Heard learned counsel for the applicants; learned A.G.A. for the State and perused the record.

2. The present 482 Cr.P.C. application has been filed to quash the Charge Sheet dated 12.08.2021; cognizance/summoning order dated 20.02.2023 as well as entire criminal proceedings of Case No.274 of 2023 (State Vs. Vivek Sharma and others) arising out of Case Crime No.325 of 2021, under Sections 420, 406 I.P.C., P.S. Subhash Nagar, District Bareilly.

3. Instant F.I.R. has been lodged under Sections 406, 420 I.P.C. alleging that applicant no. 1 who is director Maxin Infra-tech Pvt. Ltd. and applicant no. 2 is director of S.E. Infrazone Pvt. Ltd. told the informant that their company is bringing a project for a better home in lessor amount. Thereafter, the informant invested money and booked the apartment and gave advance of Rs.1,39,900/- (Rs.1 lac through cheque and Rs.39,900/- through cash). Thereafter, the applicants and another co-accused persons cheated and misappropriated the said amount. Neither they returned the said amount nor allotted the flat in question.

4. Counsel for the applicants submits that applicants are innocent and have been falsely implicated in the present case. The allegation alleged in the F.I.R. is false, baseless and not supported by any evidence. The applicants never committed any breach of trust as applicants have received money from the informant in good faith and handed over the same to co-accused Tarun Jagota for executing agreement in favour of the informant. The I.O. without collecting material evidence, in very hasty manner, submitted charge sheet under the aforesaid sections and the learned Magistrate without applying judicial mind took cognizance and issued summons against the applicants. It is next submitted that proceedings under Sections 420 and 406 I.P.C. cannot run jointly in view of the judgment of Apex Court in Delhi Race Club (1940) Ltd. vs. The State of Uttar Pradesh & Anr., 2024 SCC OnLine SC 2248. In support of his submission, counsel for the applicants has also placed reliance upon another judgment of Apex Court in Anand Kumar Mohatta and Another Vs. State (NCT of Delhi) Department of Home and Another, (2019) 11 SCC.

5. Per contra, learned A.G.A. vehemently opposed the submission raised by the counsel for the applicants and submitted that the submissions raised by the counsel for the applicants are disputed question of facts which cannot be considered, at this stage. On perusal of F.I.R. and other material evidence collected by the I.O., it is evident that the informant gave advance of Rs.1,39,900/- to the applicants and thereafter, the applicants have misappropriated the money. Neither they returned the amount nor allotted the flat in question. The argument raised by counsel for the applicants is require proper examination and, prima facie, offence is made out against the applicants.

6. Considered the argument raised by counsel for the applicants and perused the record. From the record, it is apparent that applicants took the advance money Rs.1,39,900/- from the informant. More than 10 years have passed and they have not returned the said amount nor executed sale deed. The argument raised by the counsel for the applicants that in view of the judgment of Apex Court in the case of Delhi Race Club (supra), the cognizance and summoning by the learned Magistrate is bad in the eye of law. The Hon. Apex Court while deciding the case Delhi Race Club (supra) in final conclusion has observed that:

"41. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Indian Penal Code (IPC) was the official Criminal Code in the Republic of India inherited from the British India after independence. The IPC came into force in the sub-continent during the British rule in 1862. The IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1st July 2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

42. When dealing with a private complaint, the law enjoins upon the magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from a FIR, this responsibility is of the police ? to thoroughly ascertain whether the allegations levelled by the informant indeed falls under the category of cheating or criminal breach of trust. Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

43. 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 viz-a-viz 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 the IPC (now BNS, 2023) are not twins that they cannot survive without each other."

7. The Hon. Apex Court by way of aforesaid judgment has directed all the police authority that the police officers across the country should be imparted proper training in law so as to understand the distinction between the offence of cheating and criminal breach of trust. Both offences are independent and distinct. The two offences cannot co-exist simultaneously, in the same set of facts. The Hon. Apex Court while dealing with private complaint has laid down the law that the learned Magistrate before summoning should apply judicial mind after perusing the complaint and statement of the witnesses recorded under Sections 200 Cr.P.C. and 202 Cr.P.C. and should also consider the distinction between the two offences of cheating and criminal breach of trust. In the present case, in hand, is F.I.R./state case the Investigating Officer, after collecting the evidence, has submitted charge sheet and thereafter, learned Magistrate took cognizance and issued summons. It is inquiry stage. It is pre-stage before framing of charge. The trial court has time to evaluate and examine all the evidences collected by the I.O. before framing of charge. With the aforesaid observation, this Court finds that the judgement held by the Hon. Apex Court in Delhi Race Club is not applicable in the present case. The reliance placed upon the judgment of Apex Court in Anand Kumar Mohatta (Supra), the facts of that case is entirely different from the facts of the present case and is not applicable in the present case. From the record, it is apparent that the statements of witnesses recorded during investigation by I.O., prima facie discloses offences that applicants took money from the informant, thereafter, he has not refunded the money and dishonestly misappropriated the amount given by the informant and more evidence has yet to come during trial.

8. No ground for quashing the proceedings of the aforesaid case, is made out which may call for any interference by this Court in exercise of its inherent power under Section 482 Cr.P.C.

9. The present application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.

Order Date :- 4.8.2025

Meenu Singh