Ashish Pandey v. State of U.P. Thru. the Prin. Secy. Deptt. of Home Lko. and Another

Allahabad HC25 Mar 2025A482/2549/2025

Case brief

AI extract

What is this about?

Applicant sought quashing of a summoning order under Sections 406, 420 and 506 IPC arising from a construction-contract payment dispute he described as civil, relying on Delhi Race Club on cheating versus breach of trust. The court found the matter required consideration, issued notice to private respondents, stayed the impugned proceedings and connected the case with an earlier related applicatio

What did the court decide?

Interim stay of the proceedings of complaint case No. 743 of 2024 until next date of listing; notice to private respondents.

Ashish Pandey vs State of U.P. Thru. the Prin. Secy… — Quashing and FIR | Allahabad HC (2025)

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Court No. - 12

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Case :- APPLICATION U/S 482 No. - 2549 of 2025

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Applicant :- Ashish Pandey Opposite Party :- State Of U.P. Thru. The Prin. Secy. Deptt. Of Home Lko. And Another Counsel for Applicant :- Ashish Chaturvedi,Desh Deepak Singh Counsel for Opposite Party :- G.A.

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Hon'ble Alok Mathur,J.

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Heard Sri Ashish Chaturvedi, learned counsel for applicant as well as learned A.G.A. for the State.

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The instant application under Section 482 of Cr.P.C. has been filed for the following reliefs:-

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"Wherefore it is most respectfully prayed that in the aforesaid facts and circumstances the application preferred under Section 482 Cr.P.C. may kindly be allowed and the Summoning order dated 01.02.2025 issued under Section 406, 420 and 506 IPC against the petitioner along with the proceedings and effects arising out of complaint case No. 743 of 2024(Alok Kumar Srivastava Vs. Ashish Pandey) may kindly be quashed in the interest of justice.

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It is futher prayed that during pendency of the present petition, the operation and implementation of the entire proceeding of complaint case No. 743 of 2024(Alok Kumar Srivastava Vs. Ashish Pandey) under Section 406, 420 and 506 IPC pending in the Court of Additional Chief Judicial Magistrate, Court No. 38, Barabanki may kindly be stayed."

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It has been submitted by learned counsel for applicant that applicant had entered into a contract with respondent No. 2 described himself as owner of Sana Builders and having a vast experience of building construction for construction of residential houses. The applicant has paid an amount of Rs. 22 lakhs to respondent No. 2 against the bill submitted by the respondents for an amount of Rs. 229,33,650/- and there seems to be a dispute between applicant and respondent No. 2 with regard to remaining Rs. 7,33,650/-.

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It has further been stated that applicant had approached consumer forum alleging certain deficiencies including structural defects in the building constructed by the respondents and also some controversy is pending before the consumer

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court at the behest of the applicant in Case No. 242/2022. It is stated that the dispute is purely a civil dispute and taking this fact into account even the F.I.R. under Section 406n 420 and 506 I.P.C. was lodged by the applicant against respondent No. 2 was interfered with by this Court by means of order dated 20.12.2024 in Application under Section 482 No. 11761/2024. He has further submitted that Hon'ble the Supreme Corut in the case of Delhi Race Club (1940) Ltd. and Ors. Vs. State of U.P. and Anr. reported in (2024) SCC OnLine SC 2248 , it has been provided that trial for criminal breach of trus and cheating cannot run together and therefore submits that in the aforesaid circumstances, the proceedings initiated by respondents resulted in the summoning order are deserves to be set aside.Relevant portion of the aforesaid judgment is quoted as under:- Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690 :

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"53. Before we close this matter, we would like to say something as regards the casual approach of the courts below in cases like the one at hand. The Indian Penal Code (IPC) was the official Criminal Code in the Republic of India inherited from British India after Independence. IPC came into force in the subcontinent during the British rule in 1862. IPC remained in force for almost a period of 162 years until it was repealed and replaced by the Bharatiya Nyaya Sanhita ("BNS") in December 2023 which came into effect on 1-7-2024. It is indeed very sad to note that even after these many years, the courts have not been able to understand the fine distinction between criminal breach of trust and cheating.

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54. When dealing with a private complaint, the law enjoins upon the Magistrate a duty to meticulously examine the contents of the complaint so as to determine whether the offence of cheating or criminal breach of trust as the case may be is made out from the averments made in the complaint. The Magistrate must carefully apply its mind to ascertain whether the allegations, as stated, genuinely constitute these specific offences. In contrast, when a case arises from an FIR, this responsibility is of the police — to thoroughly ascertain whether the allegations levelled by the informant indeed fall under the category of cheating or criminal breach of trust.Unfortunately, it has become a common practice for the police officers to routinely and mechanically proceed to register an FIR for both the offences i.e. criminal breach of trust and cheating on a mere allegation of some dishonesty or fraud, without any proper application of mind.

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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-à-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."

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Considering the submissions of learned counsel for the parties and going through the contentions of the application as well as judgment relied upon by learned counsel for applicant, it is noticed that as per the judgment of Hon'ble the Supreme Court, it is settled that trial for offences of cheating and criminal breach of trust cannot run together. Accordingly, the matter requires consideration.

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Issue notice to private respondents.

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Learned counsel for applicant shall take steps within one week.

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Till the next date of listing, the impugned proceedings shall remain stayed.

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Connect and list this case along with Application U/S 482 Cr.P.C. No. 11761/2024 on 30.04.2025.

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(Alok Mathur, J.)

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Order Date :- 25.3.2025

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Ravi/

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Digitally signed by :- RAVI SHANKAR SRIVASTAV High Court of Judicature at Allahabad, Lucknow Bench

Ashish Pandey v. State of U.P. Thru. the Prin. Secy. Deptt. of Home Lko. and Another

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Ashish Pandey v. State of U.P. Thru. the Prin. Secy. Deptt. of Home Lko. and Another

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