Allahabad High Court
Shyam Ji Mishra vs State Of U.P. Thru. Prin. Secy. Deptt. Of ... on 7 August, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:46078
Court No. - 14
Case :- APPLICATION U/S 482 No. - 6385 of 2025
Applicant :- Shyam Ji Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko And Another
Counsel for Applicant :- Surya Prakash Singh
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Since, the legal question is involved in this matter, therefore, the same is decided at the admission stage and the issuance of notice to the informant/opposite party no. 2, is hereby dispensed with.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.
The instant application under section 482 of Cr.P.C./528 of the B.N.S.S.,2023, has been filed with the prayer to quash/set aside the proceedings of Case No. 16547 of 2024, Case Crime No. 763 of 2022, under sections 420, 406, 504 of the I.P.C., Police Station-Kotwali Nagar, District-Ayodhya as well as the cognizance order dated 24-12-2024 passed by the Chief Judicial Magistrate, Ayodhya as well as the chargesheet No. 137 of 2023, dated 08-04-2023, arising out of Case Crime No. 763 of 2022, under sections 420, 406, 504 of the I.P.C., Police Station-Kotwali Nagar, District-Ayodhya, pending before the Chief Judicial Magistrate, Ayodhya and all consequential orders.
It is contended by the learned counsel for applicant that the first information report was lodged by the informant on 27-11-2022; after an order was passed on the application filed under section 156(3) of the Cr.P.C., wherein the allegation for committing cheat and fraud including the breach of trust has been levelled.
He argued that after the aforesaid first information report was lodged, the matter was investigated by the Investigating Officer and the chargesheet was filed on 08-04-2023 and the cognizance was taken on 24-12-2024. He added that the summons were issued by the learned trial court for the offence under sections 420 & 406 alongwith section 504 of the I.P.C. He submits that as per the settled proposition of law, the summons could not have been issued under section 420 alongwith section 406 of the I.P.C., which shows that there is non application of mind of the learned trial court concerned.
In support of his contentions, he has placed reliance on the Judgment of the 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) 8 S.C.R. 670 and has referred paragraph nos. 27,31 & 32 of the aforesaid Judgment, which are quoted hereinunder :- .
"27. 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 of IPC, punishable under Section 406 of 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 of the IPC, punishable under Section 420 of the IPC.
31. At the most, the court of the Additional Chief Judicial Magistrate could have issued process for the offence punishable under Section 420 of the IPC i.e. cheating but in any circumstances no case of criminal breach of trust is made out. The reason being that indisputably there is no entrustment of any property in the case at hand. It is not even the case of the complainant that any property was lawfully entrusted to the appellants and that the same has been dishonestly misappropriated. The case of the complainant is plain and simple. He says that the price of the goods sold by him has not been paid. Once there is a sale, Section 406 of the IPC goes out of picture. According to the complainant, the invoices raised by him were not cleared. No case worth the name of cheating is also made out.
32. Even if the Magistrate would have issued process for the offence punishable under Section 420 of the IPC, i.e., cheating the same would have been liable to be quashed and set aside, as none of the ingredients to constitute the offence of cheating are disclosed from the materials on record."
Concluding his argument, he submits that the impugned order dated 24-12-2024 passed by the learned Chief Judicial Magistrate,Ayodhya is erroneous and against the settled proposition of law and thus, submission is that the same may be set aside.
On the other hand, learned A.G.A. appearing for the State has opposed the contentions aforesaid on merits, but, he has failed to dispute the settled legal proposition of law and the erroneous order passed by the learned Chief Judicial Magistrate.
Considering the submissions of learned counsels for the parties and after perusal of record including the settled proposition of law laid down by the Hon'ble Apex Court in the case Delhi Race Club(1940) Ltd.(Supra), it is apparent that the learned trial court has passed the impugned order dated 24-12-2024, wherein the summons have been issued under sections 420 & 406 of the I.P.C., which is impermissible under law.
It is well settled that the trial cannot proceed under sections 420 & 406 of the I.P.C. simultaneously as the ingredient of section 420 of the I.P.C. is different than the ingredient of section 406 of the I.P.C. and that cannot go into the same breath.
In view of the foregoing reasons and circumstances, the impugned order dated 24-12-2024 is unsustainable in the eyes of law and the same is hereby set aside.
The matter is remitted back to the trial court concerned to decide the same afresh within sixty days from the date of this order.
The application is allowed accordingly.
Order Date :- 7.8.2025
AKS
