Vaibhao Pratap Singh vs State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

Court No. - 14

Case :- APPLICATION U/S 482 No. - 2404 of 2025

Applicant :- Vaibhao Pratap Singh Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another Counsel for Applicant :- Shobhit Harsh,Abdul Ahad,Jatin Raheja,Prabhat Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Manish Kumar,J.

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Supplementary affidavit filed today is taken on record.

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The present application under Section 482 Cr.P.C/528 B.N.S.S has been preferred with the following main prayer:-

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"It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow this Application under 482 Cr.P.C. now U/s 528 BNSS, 2023 and quash the entire criminal proceedings of Crl. Misc Case No. 83044/2023 (CNR No. UPLK040904142023), arising out of Case Crime No. 168/2022, (State Of U.P. Versus Vaibhao Pratap Singh) pending in the Court of Additional Chief Judicial Magistrate, Court No.26, Lucknow, District Lucknow, Under Section 420,406,504,506 I.P.C. 1860, Police Station- Vibhuti Khand, District - Lucknow, passed against the applicant in the interest of justice.

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It is further respectfully prayed that this Hon'ble Court may graciously be pleased to stay the operation and implementation of the summoning order dated 03.08.2023 passed by the Court of Chief Judicial Magistrate, Lucknow, District - Lucknow, in Crl. Misc Case No. 83044/2023 (CNR No. UPLK040904142023), arising out of Case Crime No. 168/2022, (State Of U.P. Versus Vaibhao Pratap Singh) pending in the Court of Additional Chief Judicial Magistrate, Court No.26, Lucknow, District Lucknow, Under Section 420,406,504,506 I.P.C., 1860, Police Station-Vibhuti Khand, District - Lucknow, passed against the applicant during pendency of this petition in the interest of justice. "

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The F.I.R was lodged by the respondent no. 2 against the applicant under Sections 406, 420, 504 and 506 I.P.C. The police, after the investigation, has submitted the chargesheet in the aforementioned cases.

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Learned counsel for the applicant has submitted that the charge sheet against the applicant has been filed under Sections 504, 506, 406 and 420 IPC 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:-

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"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.

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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.

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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.

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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."

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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 applicants i.e. the Section 406 I.P.C and Section 420 I.P.C cannot be

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proceeded with simultaneously.

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The matter requires consideration.

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Issue notice to the respondent no. 2.

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Steps be taken within seven days.

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List this case in the week commencing 26.05.2025.

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Office is directed to submit service report by the next date of listing.

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Till the next date of listing, proceedings of Case Crime No. 168/2022, (State Of U.P. Versus Vaibhao Pratap Singh) pending in the Court of Additional Chief Judicial Magistrate, Court No.26, Lucknow, District Lucknow, Under Section 420,406,504,506 I.P.C. 1860, Police Station- Vibhuti Khand, District - Lucknow, shall remain stayed.

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Order Date :- 25.4.2025

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DiVYa

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Digitally signed by :- DIVYA SINGH High Court of Judicature at Allahabad, Lucknow Bench

Vaibhao Pratap Singh v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

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Vaibhao Pratap Singh v. State of U.P. Thru. Addl. Chief Secy. Home Lko. and Another

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