Allahabad High Court
Ram Narayan Yadav vs State Of U.P. And Another on 24 September, 2025
Author: Saurabh Srivastava
Bench: Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:174441
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 37002 of 2025
Ram Narayan Yadav
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Dhirendra Pratap Singh
Counsel for Opposite Party(s)
:
G.A.
Court No. - 77
HON'BLE SAURABH SRIVASTAVA, J.
1. Heard learned counsel for the parties.
2. Present application has been preferred with prayer to quash summoning order dated 10.02.2021 passed by learned Additional Chief Judicial Magistrate/Senior Division, 3, Gorakhpur as well as further proceeding of the Case no. 45177 of 2021 (Ram Narayan Yadav vs. State of U.P.) arising out of Case Crime no. 511 of 2020 under sections 406, 419, 420 IPC and section 138 NI Act, PS- Jhangha, District Gorakhpur.
3. Learned counsel appearing on behalf of applicant has challenged the summoning order dated 10.02.2021 on several grounds firstly that present matter arises out of offence related to cheque dishonor and as such complaint under Section 138 N.I. Act has to be lodged at the behest of informant for the said offence but in the present case FIR has been registered in pursuance to sections 406, 419, 420 IPC and section 138 NI Act. While taking cognizance of offence over the charge sheet dated 26.11.2022 submitted against applicant, vide order dated 10.02.2021, learned court concerned took cognizance against applicant in pursuance to sections 406, 419, 420 IPC and section 138 NI Act. The cognizance order is not sustainable on the second 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 415IPC, punishable under Section 420IPC.
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. On the other hand, learned A.G.A. has vehemently opposed the prayer sought through the instant application but unable to dispute the settled proposition of law as relied upon by the learned counsel appearing for applicant.
5. Since argument has been raised by learned counsel for applicant only on legal ground and as such process to issue notice to opposite party no. 2/informant is hereby dispensed with.
6. After hearing the learned counsel for the parties, going through the record of the case and the judgment of the Hon'ble Supreme Court rendered in the case of Delhi Race Club (Supra), it is crystal clear that both the sections i.e. Sections 420 and 406 IPC cannot go in the same breath. Insofar as section 138 N.I. Act is concerned cognizance in pursuance to said section is not maintainable, since there is a provision for filing complaint for any offence punishable under N.I. Act and as such lodged FIR in said section is not sustainable in the eye of law. While section 419 I.P.C. is concerned, the same have been fastened against the applicant in connection with Sections 406 and 420 I.P.C and 138 N.I. Act, and as such, impugned cognizance and summoning order dated 10.02.2021 passed by learned Additional Chief Judicial Magistrate/Senior Division, 3, Gorakhpur in Case no. 45177 of 2021 (Ram Narayan Yadav vs. State of U.P.) arising out of Case Crime no. 511 of 2020 under sections 406, 419, 420 IPC and section 138 NI Act, PS- Jhangha, District Gorakhpur, is hereby quashed.
7. Accordingly, the instant application stands partly allowed.
8. However, this order will not preclude the authorities to proceed afresh, if required, under the specific proceedings as mandated by the Statute.
(Saurabh Srivastava,J.)
September 24, 2025
Shaswat
