Allahabad High Court
Jitendra Alias Jeetu Patel vs State Of U.P. And Another on 13 October, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:183695
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 26532 of 2025
Jitendra Alias Jeetu Patel
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Shailendra Kumar Singh
Counsel for Opposite Party(s)
:
G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
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 17.3.2020 and cognizance as well as summoning order dated 28.10.2020 taken by learned Chief Judicial Magistrate, Bareilly arising out of Case Crime no. 0809 of 2018 under sections 420, 406, 506 IPC, PS- Izzatnagar, District Bareilly, pending in court of learned Chief Judicial Magistrate, Bareilly.
3. Learned counsel appearing on behalf of applicant has challenged the impugned chargesheet along with cognizance/summoning order and entire proceedings of the present case 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 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. Although, learned A.G.A. did not dispute the settled proposition of law as relied upon by the learned counsel appearing for applicant but vehemently opposed the prayer sought through the instant petition by way of submitting that cognizance order impugned is of the year 2020 and the same has been challenged through the instant application after about five years without explaining the delay and latches and as such, the same may be dismissed on the ground of delay and latches.
5. After hearing the rival submissions extended by learned counsels for the parties and perusing the records, it transpires that in the present matter, chargesheet was filed in the year 2020 whereupon cognizance was also taken in the year 2020 and now the same has been challenged through the instant application after about five years without explaining the delay and if the Court fails to take into consideration delay and latches while invoking the powers of the High Court under Section 528 BNSS without any reasonable ground, there would be no end to the litigation. A party cannot approach the High Court under Section 528 BNSS at his whim and caprice merely because no period of limitation in filing the petition under the aforesaid provision is provided. A petition under Section 528 BNSS must be filed within a reasonable time and it should not be vitiated by inordinate delay and latches on the part of applicant.
6. Within what time a person should approach the Court under Section 528 BNSS depends upon the facts and circumstances of the case. Reasonable time generally means any time which is not manifestly unreasonable and which is fairly necessary for approaching the Court. Reasonable time would mean a time required by a prudent litigant to approach the Court in the given facts and circumstances of the case.
7. Analyzing the facts of the instant case in the backdrop of aforesaid position, it is absolutely clear that applicant has approached this Court at a highly belated stage i.e. after about five years of passing the order impugned. The applicant after awaking up from deep slumber, approached this Court without any iota of explanation for the delay as per his choice. Thus, it can by no stretch of imagination be stated that the applicant has approached this Court within a reasonable time. The applicant wants this Court to exercise its jurisdiction under Section 528 BNSS, which, in the facts and circumstances of the case, this Court would be reluctant to do.
8. In view thereof, the instant application stands dismissed being highly belated. Applicant is, however, at liberty to take recourse to the alternate remedy, if available under the law.
(Saurabh Srivastava,J.)
October 13, 2025
Shaswat
