[Cites 14, Cited by 0]
Patna High Court
Ashmeet Singh vs The State Of Bihar on 16 December, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.253 of 2025
Arising Out of PS. Case No.-4834 Year-2024 Thana- PATNA COMPLAINT CASE District-
Patna
======================================================
Ashmeet Singh Son of Sri Amarjeet Singh, Resident of E-43, Chhatarpur
Extension, P.S. - Chhatarpur, District - South Delhi - 110074
... ... Petitioner/s
Versus
1. The State of Bihar
2. Niraj Shrivastav Son of Late Sukhdeo Prasad Srivastav, Resident of Plot No.
2, Shakti Puram, Ashiana Nagar, P.S. - Rajeev Nagar, P.O. - Ashiana Nagar,
District - Patna - 800025
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Raj Kumar, Advocate
Mr. Akshansh Ankit, Advocate
For the Opposite Party/s : Mr.Zainul Abedin, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 16-12-2025
Heard learned counsel appearing on behalf of the
petitioner and learned APP appearing for the State.
2. The petitioner has preferred the application under
Section 482 Cr.P.C. / 528 BNSS for quashing of the order dated
11.06.2024
passed by the learned Judicial Magistrate 1 st Class,
Patna in complaint case no. 4834(C)/ 2024 whereby he has
taken cognizance for the offence under Sections 406, 420, 463,
467, 468, 471 and 120(B) of the Indian Penal Code against the
petitioner.
3. At this stage, this Court don't want to go into the
legality or illegality of the order passed by the learned District
Patna High Court CR. MISC. No.253 of 2025 dt.16-12-2025
Court taking cognizance under Sections 406, 420, 463, 467,
468, 471 and 120(B) of the Indian Penal Code as it is settled
principle of law that where the facts disclose the commission of
an offence under Section 406 IPC in relation to a particular
transaction, the accused cannot, at the same time and on the
same set of allegations, be held liable for the offence of cheating
under Section 420 IPC and vice-versa.
4. Recently, the Apex Court in the case of Arshad
Neyaz Khan Vs. State of Jharkhand & Anr., reported in (2025)
SCC OnLine SC 2058, upon analysis of law, has finally
concluded that Sections 406 and 420 of the Indian Penal Code
cannot co-exist simultaneously. The observations made by the
Apex Court in Para-16, 20 and 21 are reproduced hereinafter:
"16. The contents of the complaint as well as
the FIR would have to be read in light of the ingredients of
Sections 406 and 420 IPC and the law settled by this Court
through various judicial dicta. On perusal of the complaint
dated 29.01.2021, it is noted that the
complainant/respondent No. 2 has filed the said complaint
invoking Sections 406, 420 and 120B IPC. For ease of
reference, the aforesaid Sections are extracted as under:
"406. Punishment for criminal breach of trust.--
Whoever commits criminal breach of trust shall be punished
with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
xxx
420. Cheating and dishonestly inducing delivery of
property.- Whoever cheats and thereby dishonestly induces
the person deceived to deliver any property to any person,
or to make, alter or destroy the whole or any part of a
valuable security, or anything which is signed or sealed,
and which is capable of being converted into a valuable
security, shall be punished with imprisonment of either
Patna High Court CR. MISC. No.253 of 2025 dt.16-12-2025
description for a term which may extend to seven years, and
shall also be liable to fine.
xxx
120B. Punishment of criminal conspiracy.-(1)
Whoever is a party to a criminal conspiracy to commit an
offence punishable with death, imprisonment for life or
rigorous imprisonment for a term of two years or upwards,
shall, where no express provision is made in this Code for
the punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence punishable
as aforesaid shall be punished with imprisonment of either
description for a term not exceeding six months, or with
fine or with both."
20. On perusal of the allegations contained in the
complaint, in light of the ingredients of Section 406 IPC,
read in the context of Section 405 IPC, do not find that any
offence of criminal breach of trust has been made out. It is
trite law that every act of breach of trust may not result in a
penal offence unless there is evidence of a manipulating act
of fraudulent misappropriation of property entrusted to him.
In the case of criminal breach of trust, if a person comes
into possession of the property and receives it legally, but
illegally retains it or converts it to its own use against the
terms of contract, then the question whether such retention
is with dishonest intention or not and whether such
retention involves criminal breach of trust or only a civil
liability would depend upon the facts and circumstances of
the case. In the present case, the complainant/respondent
No. 2 has failed to establish the ingredients essential to
constitute an offence under Section 406 IPC. The
complainant/respondent No. 2 has failed to place any
material on record to show us as to how he had entrusted
property to the appellant. Furthermore, the complaint also
omits to aver as to how the property, so entrusted to the
appellant, was dishonestly misappropriated or converted
for his own use, thereby committing a breach of trust.
21. Furthermore, it is pertinent to mention that if it is
the case of the complainant/respondent No. 2 that the
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 in Section 415, punishable under Section 420
IPC. This Court in Delhi Race Club (1940) Limited v. State
of Uttar Pradesh, (2024) 10 SCC 690 observed that there is
a distinction between criminal breach of trust and cheating.
For cheating, criminal intention is necessary at the time of
Patna High Court CR. MISC. No.253 of 2025 dt.16-12-2025
making 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 misappropriates the same. Whereas, in
case of cheating, the offender fraudulently or dishonestly
induces a person by deceiving him to deliver a property. In
such a situation, both offences cannot co-exist
simultaneously. Consequently, the complaint cannot contain
both the offences that are independent and distinct. The said
offences cannot co-exist simultaneously in the same set of
facts as they are antithetical to each other."
5.The learned Magistrate without following the said
principal of law by the Apex Court as referredabove, proceeded
to take cognizance against the petitioner under the aforesaid
sections. I find that the order dated 11.06.2024 passed by the
learned Judicial Magistrate 1st Class, Patna to that extent is
required to be quashed and set aside. The matter is remitted
back for taking cognizance by the learned Magistrate concerned
in accordance with the provision prescribed under Chapter 15 of
Cr.P.C. without delay.
6. Accordingly, the present application stands
disposed of.
(Purnendu Singh, J)
Sanjay/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 18.12.2025
Transmission Date 18.12.2025
