Allahabad High Court
Surendra Singh vs State Of U.P. Thru. Addl. Chief Secy. ... on 14 May, 2025
Author: Manish Kumar
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:28271
Court No. - 14
Case :- APPLICATION U/S 482 No. - 4043 of 2025
Applicant :- Surendra Singh
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another
Counsel for Applicant :- Rajendra Prasad,Kuldeep Prakash,Vinod Kumar
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
1. The present application under Section 482 Cr.P.C/528 B.N.S.S has been preferred with the following main prayer:-
" Wherefore, it is most respectfully prayed that this Hon'ble Court may kindly be pleased to quash summoning order dated the 07.11.2023 passed by Special Judge SC/ST Act in Criminal Case No. 3278 of 2023, Case Crime No. 80 of 2023 under section 406/420504/506 I.P.C. read with section 3(1)Da, Dha and section 3(2) (v) SC/ST Act, Police Station Naka Hindola, Lucknow, State versus Surendra Singh and others as contained in Annexure No. 6 to this petition during pendency of case, and charge sheet filed by the police of police station Naka Hindola Lucknow contained in Annexure No.5 is also be quashed in respect of petitioner, in the interest of justice."
2. The brief facts of the case are that on 01.06.2023, an F.I.R has been lodged by respondent no. 2 against the applicant and one Shri Munni Lal alleging therein that the applicant being a property dealer has got executed an agreement to sale between respondent no. 2 and the named accused Munni Lal after taking Rs. 8,16,000/-.
3. In the agreement to sell, it has been provided that the sale deed would be executed within a period of one year and when the same was not executed, the respondent no. 2 tried to pursuade the applicant and Munni Lal to execute the sale deed but in place of executing a sale deed in favour of respondent no. 2, they had executed the sale deed in favour of some other person. On demanding the refund of money, the applicant had provided two cheques to the respondent no. 2 which were bounced. The Police, after investigation, has filed a chargesheet against the applicant under the sections mentioned in the F.I.R.
4. Learned counsel for the applicant has further submitted that the charge sheet against the applicant has been filed under sections 420, 406, 504 & 506 I.P.C and the concerned court has taken cognizance and issued summon against the applicant without application of mind. 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, Sections 406 and 420 I.P.C cannot go in the same breath. 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 I.P.C, punishable under Section 406 I.P.C, 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 I.P.C, punishable under Section 420 I.P.C.
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-a-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 I.P.C (now B.N.S, 2023) are not twins that they cannot survive without each other."
5. It is further submitted that if the respondent no. 2 is aggrieved from not getting the sale deed executed in his favour, he may file a suit for specific performance for execution of sale deed and in case the cheques are bounced, then he has a remedy to file an application under Section 138 N.I Act.
6. He further submitted that the dispute is purely civil in nature, which has been given a criminal colour. In support of his submission, learned counsel for the applicant has relied upon the judgment of the Hon'ble Supreme Court in the case of Paramjeet Batra vs. State of Uttrakhand (2013) 11 SCC 673; Randheer Singh Vs. State of U.P. (2021) 14 SCC 626; State of Haryana and others vs. Bhajan Lal and others, 1992 Supp (1) SCC 335.
7. Learned A.G.A. has vehemently opposed the application but unable to dispute the settled proposition of law as relied upon by the learned counsel for the applicant i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be proceeded with simultaneously.
8. The matter requires consideration.
9. Issue notice to the respondent no. 2.
10. Steps be taken within seven days.
11. List this case in the second week of July, 2025.
12. Office is directed to submit service report by the next date of listing.
13. Till the next date of listing, no coercive action shall be taken against the applicant.
Order Date :- 14.5.2025
DiVYa
